iJuij:  i:^^.:.    vJ^JLJ 


*  / «'  t.^- 


4.fF         /^r^^  ^ 


University  of  California. 

FROM    THE    LIBRARY    OF 

]:)R.     FRANCIS     LIEBER, 
Profefsor  of  History  and  Law  in  Columbia  College,  New  Yor,k. 

THK  GIFT   OF 

MICHAEL     REESE, 

Of  San  Francisco. 
isrs. 


I 


r^^>iu^nJ'  r^/^  l^4^^i^  ^i^faZ^,  /^^ 


AN   ARGUMENT 


AUAlNS'r 


THE  J  URISDICTION 


MILITARY  COMMISSIONS 


TO  TRY 


CITIZENS  OF  THE  UNITED  STATES, 


DELIVERED  UST  THE  CASE  OF  \VM.  A.  BOWLES, 
AND  OTHERS,  BY 


HON.  J.  W.  GORDON. 


INDIANAPOLIS: 

HALL  k  HUTCHINSON,  PRINTERS  AND  BINDERS. 

18  0  5. 


■ 


Library^ 

jonathan"wTgordon's 

ARGUMENT  ON  THE  JURISDICTION  OF  A  « 

MILITARY    COMMISSION 

TO  TRY  CITIZE]tTS  OF  A  LOYAL  STATE. 


Mr,  Fresident  and  Gentlemen  of  the  Commission : 

I  appear  for  Col.  Bowles  and  Mr.  Humphreys,  who  have  di- 
rected me  to  discuss  the  question  of  your  jurisdiction  to  try 
them.  Before  proceeding  to  this  discussion,  however,  I  may  be 
pardoned  for  briefly  referring  to  some  preliminary  considera- 
tions. 

I  will  not  deny  that  I  am  oppressed  with  the  greatness  and 
weight  of  the  labor  assigned  me.  Many  circumstances  conspire 
to  make  this  day's  work  a  burthen,  while  but  few  sources  of 
external  encouragement  and  support  are  to  be  found. 

I  meet  at  the  threshhold  of  the  solemn  duty  of  this  hour,  the 
settled  hostility  of  the  Administration,  the  fierce  and  relentless 
spirit  of  the  dominant  party,  and  a  strong  tide  of  prejudice  and 
passion  created  by  a  partizan  press  which,  during  this  trial,  has 
continually  prejudged  the  questions  to  be  discussed  and  decided 
here  to-day.  Norjindeed,  has  this  uncharitable  work  been  con- 
fined to  the  press.  Public  speakers  have  caught  up  the  testi- 
mony of  witnesses  even  before  their  cross-examination;  and, 
with  such  one  sided,  partial,  broken  fragments  of  the  whole 
truth,  have  rushed  eagerly  into  the  popular  arena,  and  proclaimed 
the  guilt  of  the  accused  in  every  part  of  the  State. 

It  is  impossible  that  these  facts  should  not  have  met  your  ob- 
servation; and  almost  as  impossible  that  you  should  not,  (al- 
though you  are  all  unconscious  of  their  influence,)  be  more  or 
less  affected  by  them.  They  can  not,  indeed,  have  passed  unob- 
served by  you  who  have  been  at  liberty  and  circulating  freely 
among  the  people;  for  they  have  found  their  way  even  into  the 
lonely  cells  of  the  prisoners,  and  made  themselves  manifest  by 
the  dim  and  dismal  twilight  of  their  dungeons.  They  are,  in- 
deed, everywhere.  They  have  polluted  the  atmosphere,  and  in- 
fected the  minds  of  the  people.     They  are  like  the  air  around 


2  J.    W.    GORDON  S   ARGUMENT. 

and  within  us;  and  pass  unheeded  and  unthought  of,  while 
they  giv^e  color,  direction  and  tone  to  all  our  thoughts  and  ac- 
tions. 

ITor,  in  regard  to  one  of  the  accused,  has  it  been  sufficient  for 
the  purposes  of  those  who  have  joined  in  this  hue  and  cry,  to 
confine  their  assaults  upon  him  to  the  present  time,  or  to  the 
offences  with  which  he  now  stands  charged.  They  have  gone 
back  to  the  days  of  other  years,  and  have  dragged  up  and  scat- 
tered over  the  land,  old,  and  stale,  and  groundless  imputations 
of  delinquency  originating  in  the  time  of  the  ^Mexican  War. 
A  record,  made  by  interested  men,  for  selfish  and  ambitious 
purposes,  has  been  referred  to,  and  old  passions  and  prejudices 
invoked,  upon  a  point  whereon  the  people  of  Indiana  are  justly 
more  sensitive  than  upon  any  other — the  point  of  honor.  But 
even  that  record  does  not  assail  his  courage,  his  gallantry,  or 
his  patriotism ;  and,  if  it  did,  he  might  still  proudly  appeal  from 
it  to  the  testimony  of  his  illustrious  commander,  Major  General 
Zachary  Taylor,  under  whose  eye  he  fought  on  the  glorious  field 
of  Buena  Vista,  To  the  report  of  that  chieftain  he  appeals 
against  the  slanders  born  of  subsequent  and  interested  accounts 
of  that  contest ;  and  prays  that  they  may  not  be  allowed  to  give  a 
false  and  injurious  coloring  to  the  present  accusation;  and  to 
the  sentence  which  you  are  now  about  to  pronounce. 

I  confess,  however,  that  a  still  graver  source  of  embarrass- 
ment to  me,  in  the  performance  of  my  present  duty,  springs 
from  the  nature  of  the  subject  to  be  discussed — the  importance 
of  the  principles  to  be  defended.  In  view  of  these,  the  lives  and 
fortunes  of  the  accused — and,  indeed,  of  us  all — are  as  nothing. 
They  and  we  are  but  mortal  men.  The  worst  that  can  possibly 
befall  them  at  your  hands,  can,  therefore,  but  anticipate,  by  a 
very  few  years,  the  common  doom  ^  which  time,  or  disease,  or 
both  together,  will  bring  to  them  and  to  us  all;  for 

"To  every  man  upon  this  earth,  death  cometh  soon  or  late." 

It  is  not,  then,  merely  because  the  lives  and  fortunes  of  the  ac- 
cused are  suspended  upon  the  result  of  this  trial,  that  1  confess 
myself  embarrassed — overwhelmed  at  this  moment,  in  the  pres- 
ence of  the  duty  to  which  it  calls  me.  That  the  lives,  and  for- 
tunes, and  good  fame  of  the  defendants  are  all  involved  in  this 
cause,  is,  indeed,  of  itself,  a  fact  of  sufficient  importance  to  touch 
very  nearly  any  one  whose  heart  is  not  dead  to  the  gentle  plead- 
ings of  pity  and  mercy ;  and  weigh  heavily  upon  him  who  in  any, 
even  the  least  degree,  may  divide  the  responsibility  of  an  unfor- 
tunate result  to  either.  I  am  not  insensible  to  the  weight  of 
responsibility  due,  in  that  respect,  to  my  relation  to  their  cause. 
I  am  sure,  however,  that  I  should  but  ill  represent  their  senti- 
ments and  wishes,  if  I  allowed  myself  in  this  defence  of  their 
individual  interests,  wholly  to  lose  sight  of  the  consequences 


J.    W.    GORDON  S   ARGUMENT.  « 

which  must  follow  to  the  cause  of  constitutional  liberty  in  our 
country,  by  subjecting  them  to  a  military  jurisdiction,  to  which, 
by  the  constitution  and  laws  of  the  land,  they  are,  in  my  judg- 
ment, clearly  not  amenable.  The  general  consequences  which 
must  flow  from  such  a  precedent,  give  this  trial  an  importance 
far  above  any  private  interests  involved  in  it ;  and  make  my 
sense  of  responsibility  painful  in  the  extreme,  for  fear  that 
"Me  good  old  cause''  may  suffer  detriment  through  some  default 
of  mine. 

But  amid  all  these  sources  of  discouragement  and  embarrass- 
ment,— and  there  are  others  which  time  will  not  permit  me  to 
notice, — I  acknowledge  with  due  thankfulness  that  there  are 
not  w^anting  some  great  encouragements  and  supports.  Among 
these  is  the  fact  of  publicity.  These  things  are  not  done  in  a 
corner,  nor  under  a  bushel.  They  will  be  proclaimed  from  the 
house-top  ;  and  read  and  known  of  all  men.  They  will  be  re- 
considered and  re-judged  long  after  they  shall  have  lost  all  their 
importance  to  us  who  are  now  engaged  in  them.  What  is  right 
in  them  will  be  retained  and  appropriated  by  mankind  to  aid 
the  great  cause  of  civil  liberty,  and  advancing  civilization. 
What  is  wrong  will  just  as  certainly  be  condemned  and  rejected, 
as  useless  or  hurtful  to  the  same  cause,  by  the  same  judgment. 
The  record  which  we  this  day  make  up  and  complete  will  go  to 
the  tribunal  of  history — a  tribunal  where  prejudice  can  not 
wound,  nor  slander  kill.  To  all  who  earnestly  strive  to  follow 
the  path  of  truth  and  justice  this  day,  the  decisions  of  this  tri- 
bunal can  bring  neither  harm  nor  shame;  for  truth  and  justice 
are  its  eternal  foundations. 

^or  am  I  less  encouraged  and  upheld  by  the  voice  of  history. 
The  labor  assigned  me  will  rest  upon  facts  and  precedents,  han- 
ded down  to  us  b}^  the  liberty  loving  race  to  which  we  belong. 
If  these  shall  be  regarded  as  of  any  auhority  in  this  forum,  then 
my  labors  shall  not  be  in  vain.  Success  shall  crown  them. 
The  character  of  the  members  of  this  Commission,  their  habit- 
ual love  of  constitutional  liberty,  and  of  order  maintained  bylaw, 
do  not  permit  me  to  doubt  that  they  will  carefully  consider  the 
great  question  of  jurisdiction ;  and,  indeed,  all  other  questions 
properly  before  them,  and  render  an  honest  finding  and  sentence 
according  to  the  constitution  and  laws  of  the  land.  That  con- 
stitution and  those  laws  are  but  the  organization  of  the  facts 
and  precedents  transmitted  to  us  with  our  blood,  by  our  British 
ancestors.  They  are  mingled  with  our  very  being;  and  perme- 
ate all  the  channels  of  our  social  and  political  life.  To  abandon 
them  is  to  give  up  our  social  and  political  life — is  to  die.  And, 
indeed,  in  this  time  of  national  sickness,  w^hen  the  public  mind 
is  suffering  under  a  melancholy  and  morbid  excitement, 
amounting  almost  to  frenzy,  it  would  be  madness  to  give  up  the 
sure  foundations  of  the  constitution  and  laws,  and  the  history 


4  J.   W.    GORDON  S   ARGUMENT. 

and  customs  of  a  thousand  years  upon  which  they  rest,  for  any 
new  fangled  notion  born  of  these  evil  times.  It  would  be  like 
a  man,  amid  the  delirium  of  a  fever,  abandoning  the  business 
and  habits  of  a  whole  lifetime,  for  a  new  business  and  new  hab- 
its with  which  he  had  no  acquaintance  whatever.  His  friends 
would  confine  him  in  a  straight  jacket,  and  send  him  to  a 
Lunatic  Asylum. 

No,  therefore,  it  must  not  be.  The  past  is  the  only  basis 
upon  which  to  reconstruct  the  present — the  constitution,  on 
which  it  is  possible  reunite  the  belligerent  members  of  this  once 
glorious,  but  now  broken  Union.  But  we,  who  are  devoted  to 
this  great  work  of  reconstruction,  must  not  exhibit  to  all  the 
world  our  utter  disregard  of  its  plainest  provisions,  and  most 
Bacred  principles.  We  must  not  throw  down  and  destroy  the 
fences,  which  it  has  built  about  the  primordial  rights  of  man- 
kind ;  and  then  expect  our  enemies^  or  even  our  friends  to  be- 
lieve us  sincere  in  our  professions  of  love  for  the  constitution, 
or  desire  to  restore  the  Union;  for,  by  such  a  course,  we  shall 
become  scarcely  less  guilty  of  treason  to  our  country,  than  reb- 
els in  arms  against  it.  Indeed,  the  only  distinction,  in  such 
case,  would  be  that  which  separates  force  from  fraud ;  and  as 
between  two  such  means  to  such  an  end,  I  am  sure  you  will 
agree  with  me  that  force  is  by  far  the  more  noble  and  manly. 
But  we  stand  opposed  to  both — we  who  stand  for  our  country;  and 
I  am  comforted  to  believe  that  you,  have  each  offered  your  lives 
for  its  salvation  from  the  dangers  that  assail  it  by  force,  will  not 
hesitate  to  interpose  your  justice  to  save  it  from  overthrow 
which  may  threaten  it  under  the  forms  of  law. 

It  is  left  for  others  to  discuss  the  questions  of  guilt  or  inno- 
cence arising  from  the  testimony  in  its  application  to  the  charges. 
I  have  nothing  to  do  with  it.  Only  so  much  of  the  evi- 
dence as  tends  to  throw  light  on  the  question  of  jurisdiction 
falls  to  me ;  and  I  shall  refer  to  the  charges  and  specifications  in 
so  far  only  as  they  may  aid  in  the  same  general  purpose.  The 
argument  I  am  to  make  would  be  just  as  valid  if  the  guilt  of 
the  accused  stood  admitted,  as  if  their  innocence  were  estab- 
lished by  the  proof,  beyond  all  question. 

There  are  rights  which  belong  to  the  guilty  as  well  as  to  the 
guiltless ;  and  among  them  is  that  of  a  fair  constitutional  and 
legal  trial,  and,  all  the  legitimate  consequences  thereof.  This 
right,  among  the  ignorant  and  unthinking  is  often  lost  sight  of, 
and  sometimes  disregarded.  It  is,  nevertheless,  as  important  as 
any  other.  Its  denial  is,  therefore,  a  crime  not  only  against  the 
individual,  but  also  against  society  at  large.  To  destroy  a  mur- 
derer or  a  traitor  by  any  other  process  than  that  prescribed  by 
law,  is  as  much  murder  as  to  kill  the  best  man  in  the  country. 
Dr.  Francis  Lieber  has  well  presented  this  subject  in  his  trea- 
tise on  Political  Ethics.     He  says: 


J.    W.    GOKDON  S    AllGUMENT.  5 

"The  State  never  ceases  to  protect;  even  the  bhickest  crimi- 
nal, the  moment  before  his  head  falls,  is  protected.  It  was  a 
most  fallacious  argument  that,  frustra  Icgis  auxilium  invocat 
qui  legem  committit,  from  the  lex  talionis,  §or  as  St.  John  said  be- 
fore the  Lords,  when  he  brought  in  the  bill  of  attainder  against 
the  earl  of  Sratford,  (April  29, 1641,)  "lie  that  would  not  liave 
others  have  a  law,  why  should  he  have  any  himself?"  Why 
should  not  that  be  done  to  him,  that  he  himself  would  have 
done  to  others?"  Even  modern  writers  have  endeavored  to  de- 
rive the  punitory  power  of  the  State,  from  the  fact  that  the  of- 
fender, by  doing  wrong,  declares  himself  out  of  the  jural  soci- 
ety. iTothing  can  be  more  untenable  in  all  its  bearings.  On 
the  contrary,  the  State  being  especially  a  jural  society,  can  not 
possibly  act  except  by  law,  and  upon  jural  relations,  and  as  fur 
as  the  right  of  an  individual  is  the  condition  of  his  union  with 
other  rational  individuals,  punishment  is  the  right  of  the  offend- 
er, however  paradoxical  this  may  sound  at  first,  because  we  are 
accustomed  to  imagine  under  right,  some  specific  privileges. 
State  punishment  is  likewise  the  protection  of  the  offender, 
who  without  it  would  be  exposed  to  all,  even  the  most  extrava- 
gant, modes  of  private  redress.  No  offender  would  hesitate  to 
acknowledge  and  claim  state  punishment  as  his  right,  if  the 
choice  w^ere  left  him,  between  state  punishment,  which,  because 
it  is  state  punishment,  requires  a  formal  trial  on  the  one  hand  ; 
and,  on  the  other,  those  summary  proceedings  against  criminals 
QSiUght  flagrante  delicto fV^YAch.  we  find  perhaps  in  all  early  codes, 
and  sometimes  acknowledged  to  a  very  late  period,  (Blackstone, 
4,  308,)  or  to  which  an  excited  people  sometimes  return,  when 
the  regular  trial  appears  too  slow  for  their  inflamed  passions,  as 
has  been  the  case  in  those  riotous  and  illegal  inflictions  of  death 
or  other  punishment,  so  unfortunately  called  lynch  law  in  our 
country.  I  say  unfortunately  called  lynch  law,  for  it  is  ever  to 
be  deplored,  if  any  illegal  procedure  receives  a  regular  and 
separate  name  of  its  own.  By  this  very  application  of  a  tech- 
nical term,  it  assumes  an  air  of  systematized  authority,  which 
has  an  astonishing  effect  upon  the  multitude,  and  in  fact,  upon 
most  men."     Book  2,  §  345. 

It  is  this  simple  principle  that  makes  it  murder  for  any  one 
to  kill  even  a  man  condemned  to  death  by  a  competent  court, 
in  a  difierent  manner,  or  at  a  different  time  or  place  than  may 
have  been  fixed  by  the  judgment.  The  law  in  this  respect 
makes  no  difference  between  the  lives  of  the  guilty  and  the 
guiltless.  Hence,  when  men  seek  to  bring  their  enemies  to  jus- 
tice and  punishment  by  short  and  easy  methods  unknown  to  the 
law,  and,  therefore,  in  violation  thereof,  they  but  dig  a  pit  into 
which  themselves  may,  at  any  moment,  fall  and  be  lost.  He 
w^ho  kills  even  a  traitor  in  violation  of  law,  kills  at  the  same 
time  the  law  itself. 


6  J.    W.    GORDON'S   ARGUMENT. 

Whatever  may  be  your  opinions,  therefore,  of  the  guilt  or  in- 
nocence of  the  accused,  it  can  not  effect  the  question  of  juris- 
diction. 

The  next  topic  to  which  I  desire  to  call  your  attention,  arises 
from  the  language  of  the  several  specifications,  and  is  particu- 
larly important  for  the  purposes  of  this  discussion  in  so  far  as 
it  may  apply  to  those  embraced  under  the  last  charge,  namely  : 
'•YiOLATiON  OF  THE  LAWS  OF  WAR."  It  is  this  :  that  the  alleged 
offences  were  committed  "within  the  military  lines  of  the  army 
of  the  United  States,  and  the  theatre  of  military  operations." 

Whatever  may  have  been  the  purpose  of  the  Judge  Advocate 
in  inserting  this  clause,  it  is  clear  to  any  lawyer  that  no  juris- 
diction can  arise  from,  it,  when  taken  in  connection  with  the 
fact  that  the  accused  are  citizens  of  the  State  of  Indiana,  and 
of  the  United  States;  and  that  Indiana  has  always  sustained  a 
relation  of  loyalty  to  the  Union  and  its  Government.  But 
even  if  there  was  no  proof  of  citizenship  of  the  accused,  it  has 
not  been  proven  that  the  State  of  Indiana  is  either  '*  within  the 
military  lines  of  the  armies  of  the  United  States,"  or ''  the  thea- 
ter of  military  operations."  Had  the  averment  been  that  it 
was  within  the  theater  of  war,  it  would  have  been  well ;  for  the 
whole  country  is  the  theater  of  war.  But  that  can  not  be  said 
of  the  lines  of  the  army,  or  of  the  theater  of  military  opera- 
tions. There  is  no  definition  of  "the  lines  of  the  army"  that 
extends  so  far  as  is  here  claimed  by  the  Judge  Advocate;  and  all 
military  writers  which  I  have  been  able  to  examine  define  "the 
theater  of  operations,"  as  follows,  contradistinguishing  it  from 
the  theater  of  war : 

"  The  theater  of  war  embraces  not  only  the  territory  of  the 
two  belligerent  powers,  but  also  that  of  their  allies,  and  of  such 
secondary  powers,  as  through  fear  or  interest,  may  be  drawn 
into  the  contest."  *  ^  :^  ^i^  *  * 

"  The  theater  of  operations,  however,  is  of  a  more  limited  char- 
acter and  should  not  be  confounded  with  the  theater  of  war. 
In  general,  it  includes  only  the  territory  which  an  army  seeks, 
on  the  one  hand,  to  defend,  and  on  the  other  to  invade."  Hal- 
lack^  s  Elements  of  Military  Art  and  Science,  p.  44;  JominVs  Art  of 
War,  74,  75. 

I  conclude,  therefore,  that  "  the  theater  of  military  opera- 
tions," of  a  given  army  must  be  in  front  of  the  base  of  opera- 
tions of  that  arm3^  Thus,  the  base  of  operations  of  General 
Buell's  army  during  the  winter  of  1861,  and  the  succeeding 
spring,  was  the  Ohio  river;  and  his  theater  of  operations,  the 
whole  country  south  of  that  base.  And  so  of  other  armies.  The 
base  of  our  operations  has  generally  been  some  line  separating 
friendly  from  hostile  territory;  and  hence,  "the  theater  of  op- 
erations," during  this  war,  has  generally  been  upon  the  enemy's 
soil.     The  sea-coast,  I  know,  has  frequently,  during  the  present 


war,  become  the  base  of  our  operations;  but,  then,  the  enemy's 
country  was  still,  in  every  instance,  the  theater  of  those  opera- 
tions. It  is  useless,  however,  to  discuss  these  public  and  noto- 
rious facts;  for  the  citizenship  of  the  accused,  renders  the  at- 
tempt to  make  them  responsible  for  a  violation  of  the  laws  of 
war,  wholly  futile.  Public  enemies,  only,  are  subject  to  the 
laws  cf  war.  The  citizen,  on  the  other  hand,  must  answer  for 
such  acts  as  would,  if  committed  by  an  enemy,  be  a  transgres- 
sion of  the  laws  and  usages  of  w^ar,  to  his  own  government,  ac- 
cording to  its  own  law^s.  I  will  offer  a  single  example,  which  I 
quote  from  the  auto-biography  of  Lieutenant  General  Scott. 
It  is  as  follows  : 

"In  time  of  war  all  persons,  not  citizens  of  or  owing  allegi- 
ance to  the  United  States  of  America,  who  shall  be  found  lui'k- 
ing,  as  spies,  in  or  about  fortifications  or  encampments  of  the  ar- 
mies of  the  United  States,  or  any  of  them  shall  suffer  death 
according  to  the  law  and  usage  of  nations,  by  sentence  of  a 
general  court-martial." 

"'Not  citizens;'  because,  if  citizens,  and  found  ^lurking,'  the 
crime  would  be  that  of  treason — 'adhering  to  [our]  enemies, 
giving  them  aid  and  comfort; '  and  is  so  defined  by  the  Consti- 
tution."    Yol.  1,  pp.  290,  291. 

But  what  are  "the  laws  of  war?"  To  whom  do  they  apply? 
The  answer  to  these  questions  must  forever  put  an  end  to  all 
attempts  to  invoke  the  aid  of  those  laws,  and  of  the  tribunals 
in  which  they  are  administered  for  the  trial  and  punishment  of 
one  of  our  own  citizens;  for  it  must  be  remembered  that  "the 
laws  of  war"  constitute  that  branch  of  international  law  which 
regulates  the  intercourse  and  conduct  of  belligerent  persons, 
public  enemies — with  each  other.  It  is  this  code  that  condemns 
spies,  when  taken,  to  an  infamous  punishment  at  the  hands  of 
their  enemy.  It  is  for  cruel  breaches  of  this  code,  that  we  are 
sometimes  compelled,  as  a  measure  of  self-defence,  to  resort  to 
the  cruel  practice  of  retaliation.  It  is  to  this  code  we  refer  for 
authority  to  punish  guerrillas.  And  so,  I  might  go  on  until  I 
had  enumerated  all  its  provisions ;  but  I  should  not  find  one 
for  the  punishment  of  one  of  our  own  citizens  among  them  all, 
unless  it  was  established  that  he  had  first  joined  himself  to,  and 
become  part  of  our  acknowledged  public  adversaries.  These 
laws  of  war  are  international — wholly  international ;  and  do  not 
apply  to  the  internal  regulation  of  either  one  of  two  or  more 
belligerent  powers  engaged  in  the  same  contest. 

If,  however,  it  shall  be  said  that  all  persons,  or  the  great  body 
of  them,  engaged  in  the  present  contest  on  either  side,  are  citi- 
zens of  the  United  States;  and,  therefore,  that  a  difficulty  re- 
sults in  the  application  of  this  public  code,  to  the  parties,  and 
that  what  character  any  citizen  may  sustain  to  either,  may  not 
ahvays  be  clear,  I  grant  it;  but  w.hat  follows?     Can  we  give  a 


8 

mail  a  hostile  character  before  he  has  openly  espoused  it?  Can 
we  strip  him  of  the  rights  of  citizenship,  before  he  Ijas  acquired 
that  relation  to  the  enemy  which  will  entitle  him  to  the  protec- 
tion of  this  code,  as  well  as  subject  him  to  its  penaltiesj,  in  case 
he  violates  it  ?  There  must  be  some  general  rule  on  the  subject ; 
and  there  can  be  no  other  or  better  one  than  to  hold  all  persons 
resident  in  the  States  which  have  seceded  and  still  remain  out 
of  the  Union,  as  prima  facie  public  enemies;  and  all  those  who 
have  adhered,  and  still  adhere,  to  the  Constitution  and  Union, 
as  prima  facie  citizens  of,  and  subject  to  the  laws  and  authority 
of  the  United  States. 

I  know,  indeed,  that  there  are  at  least  two  States  which  have 
hitherto  sustained  an  ambiguous  relation  to  the  struggle.  I  al- 
lude to  Kentucky  and  Missouri.  They  have  never  seceded  by 
solemn  act;  and  still  maintain  their  constitutional  relation  to 
the  Federal  Government.  But,  then,  they  are  also  represented 
in  the  Confederate  Congress,  and  army.  The  character  of  a 
citizen  of  either,  must  therefore,  depend  upon  his  conduct ;  and 
he  must  be  treated  accordingly.  If  he  has  not  joined  the  pub- 
lic enemy  openly;  but  commits  a  crime  against  the  government, 
he  is  entitled  to  be  tried  therefor  by  the  ordinary  courts  of  the 
Union,  in  pursuance  of  the  Constitution  and  laws.  If  he  has 
joined  the  public  enemy  and  been  taken  in  arms,  or  '^lurking  as 
a  s/^y,"  he  is  entitled  to  be  treated  according  to  "  the  laws  of  war :" 
— in  the  former  case  to  be  exchanged  as  a  prisoner  of  war,  in 
the  latter,  to  be  hung  for  violating  the  laws  of  war.  And  this 
is  just  w^hat  our  government  has  been  doing  during  this  rebellion. 

The  form  of  these  charges  places  the  Government  then, 
in  the  following  attitude  toward  the  accused,  namely  :  As 
claiming  them  as  citizens  on  the  one  hand,  but  denying  them 
the  rights  of  citizenship,  on  the  other :  as  fixing  upon  them, 
for  the  purposes  of  this  trial,  and  the  punishment  and  infamy 
that  may  follow  it,  the  character  of  public  enemies,  on  the  one 
hand;  but  denying  them  any  of  the  advantages  resulting  from 
that  character,  on  the  other.  Such  a  course,  I  submit,  is  unheard 
of  in  the  judicial  proceedings  of  our  country;  and  with  all 
deference  to  my  friend,  the  Judge  Advocate,  is,  in  my  opinion 
wholly  inadmissible.  I  have  little  apprehension,  therefore,  that 
you  will  claim  jurisdiction  of  the  accused  on  the  ground  that 
they  are  guilty  of  a  violation  of  the  laws  of  war;  and,  by  con- 
sequence, public  enemies.  If  you  sustain  your  ifmmi^mm  at  all, 
it  must,  therefore,  be  upon  the  basis  of  martial  lav). 

I  beg  leave  to  call  your  attention  to  a  fact,  in  evidence,  which 
must  exercise  an  important  influence  upon  your  judgment  on 
the  question :  Whether  martial  law  is,  or  has  been,  in  force  in 
the  State  of  Indiana,  or  not?  and,  of  course,  upon  that  of  your 
jurisdiction.  I  allude,  of  course,  to  the  fact  that  the  courts  both 
of  the  State,  and  of  the  United  States,  within   the  State  of  In- 


JVi/iT-v^  fiUii^l%.^>0 


9 

diana,  have  never  at  any  time,  during  the  present  rebellion  been 
thereby  shut  up,  and  the  course  of  justice  therein  disturbed  and 
stopped;  but  that  those  tribunals  have  all  along  remained  open, 
and  engaged  in  the  administration  of  justice ;  and  capable  of 
enforcing  their  judgments,  orders  and  decrees  according  to  the 
established  laws  of  the  land.  This  fact  was  not  proved  in  Mr, 
Z>odcr s  csise.  His  escape  cut  off  all  evidence  in  his  defence; 
and,  of  course,  this  fact  among  others.  Upon  this  fact,  how- 
ever, and  a  more  thorough  argument,  I  build  my  hopes  of  an 
ultimate  decision  against^he  jurisdiction.  In  pressing  the  argu- 
ment and  giving  utterance  to  these  hopes,  I  beg  leave  to  say  for 
myself,  and  for  those  whom  I  represent,  that  our  objection  to 
the  jurisdiction,  does  not  spring  from  any  objection  to  the  indi- 
vidual members  of  the  court  as  fair  minded  and  honorable  gen- 
tlemen, and  worthy  to  sit  in  judgment  upon  any  man  in  the 
land,  subject,  under  the  constitution  and  laws,  to  their  author- 
ity. It  is  on  the  other  hand,  simply  because  as  citizens,  in  no- 
wise  connected  with  the  military  or  naval  service  of  the  United: 
States,  the  accused  are  not  within  any  military  jurisdiction  what- 
ever. They  claim  the  right  to  be  tried  by  one  of  the  constitu- 
tional courts  of  their  country,  and  by  a  jury  thereof.  They  ask 
justice  at  the  hands  of  their  peers  of  the  District  of  the  State 
of  Indiana.  For  justice  is  properly  justice  only  when  legal, 
constitutional,  and  just  means,  are  employed  in  the  attainment 
of  legal,  constitutional  and  just  ends.  Your  findings  may  cor- 
respond precisely  with  what  would  be  those  of  a  jury  of  the 
country;  but  if  you  lack  jurisdiction — the  right  to  find  at  all 
in  the  premises — it  would  be  a  mockery  to  call  them,  or  any 
subsequent  proceedings  thereon,  justice.  Justice  must  have  a 
right  origin,  or  it  can  not  exist.  If  what  is  called  justice  pro- 
ceed from  a  tribunal  without  authority,  it  is  injustice,  outrage, 
crime;  and,  if  it  reach  the  life  of  him  who  is  made  its  subj-ect,. 
it  is  murder,  3  Co.  Inst.,  p.  52 ;  1  Hale's  His.  P.  C.  p.  6,  499— 
501 ;  4  Bl.  com.  178  ;  and  4  State  Trials,  p.  129. 

A  good  citizen  will  not  accept  even  a  favorable  judgment  at 
the  hands  of  an  unauthorized  tribunal ;  much  less  an  adverse 
one;  because  it  involves  the  overthrow  of  the  laws  and  govern- 
ment of  his  country,  on  which  all  rights,  whether  of  person  or 
property,  depend.  A  good  State,  alive  to  a  proper  sense  of  its 
duty  and  dignity,  will  never  allow  him  to  accept  the  one,  nor  to 
be  made  the  victim  of  the  other. 

Has  this  Commission,  then,  jurisdiction  of  this  cause?  May 
it  rightfully,  lawfully,  constitutionally  try  the  accused  upon  the 
charges  and  specifications  exhibited  against  them  ?  If  it  may,- 
whence  does  it  derive  its  authority  for  that  purpose? 

I  am  here  to-day,  to  endeavor  to  answer  these  questions* 
You  are  here  to-day,  to  judge  whether  I  give  the  true  response^ 
or  not.  That  you  may  "the  better  ^udge>"  I  a&k  your  attention^, 
your  candor,  and  your  patience. 


10  J.  w.  Gordon's  argument. 

I  do  not  believe  that  you  will  hold,  as  was  maintained  before 
you  on  a  former  occasion,  that  you  are  precluded  from  going 
into  the  question  of  jurisdiction  by  the  mere  order  of  the  Gen- 
eral convening  this  Commission,  and  that  sending  tlie  accused 
before  you  "for  trial."  That  I  may  not  misrepresent  the  posi- 
tion taken  by  the  learned  Judge  Advocate,  upon  this  point,  I  beg 
leave  to  quote  the  entire  paragraph.     It  is  as  follows : 

"When  General  Hovey  convened  this  Commission  within  the 
limits  of  his  jurisdiction,  and  committed  the  case  of  Harrison 
H.  Dodd,  the  accused,  to  this  Commission  to  try  it,  by  virtue  of 
his  military  power,  acting  under  the  authority  that  was  given 
to  him  by  the  Commander-in-chief  of  the  army,  namely :  the 
President  of  the  United  States,  he  suspended  the  civil  law,  and 
put  in  operation  the  military,  or  martial  law.  The  officers  of 
this  Commission  could  not  under  the  oath  that  they  have  taken, 
refuse  to  obey  the  orders  of  the  officers  placed  over  them. 
They  could  not  stop  and  go  back  of  that  order,  and  refuse  to 
hear  and  determine  this  case." 

]N'ow,  whatever  may  have  been  your  decision  in  that  case  upon 
the  question  of  jurisdiction,  I  am  very  certain  that  you  did  not 
adopt  the  doctrine  of  this  paragraph.  I  know  you  do  not,  and 
can  not  hold  to  the  slavish  and  shameful  notion,  that  you  sit 
here  to  do  whatever  the  commanding  General  may  order. 
Obedience  of  the  inferior  to  the  superior  is  for  the  field,  the 
march,  the  camp,  the  desk;  and  even  there  it  has  its  limits. 
The  law  does  not  require  obedience  anywhere  in  contravention 
of  its  own  provisions.  You  are  sworn  to  obey  the  "lawful" 
•commands  of  your  superiors;  and  there  your  obligation  ceases. 
The  employment  of  the  word  "lawful,"  (Art.  War  Sec.  9,) 
clearly  excludes  the  idea  of  obedience  to  all  but  such  commands. 
The  unlawful  order  of  a  superior,  even  the  highest,  can  not  be 
-given  in  evidence  in  justification  of  a  trespass — much  less  of  a 
felony.  Can  obedience  then  extend  to  the  duties  of  the  court 
room,  and  subordinate  the  justice  which,  in  your  judicial  capac- 
ity, you  are  to  administer  there?  If  it  does,  what  a  mockery  is 
all  military  justice !  Who  would,  or  could  consent  to  sit  as  a 
•member  of  a  military  court,  and  pass  judgment  upon  the  lives 
and  fortunes  of  his  fellow-men,  when  his  own  convictions  of  the 
law  and  the  facts,  in  the  case,  were  to  have  no  control  over  his 
decisions ! 

'I  had  sooner  be  a  dog  and  bay  the  moon." 

Held  on  such  terms,  your  commissions  would  be  but  badges  of 
the  most  odious  and  wicked  servitude.  Every  free  mind  that 
has  not  quite  escaped  the  direction  of  conscience,  must  reject 
fiuch  a  position  with  indignation  and  horror !  I  think  I  hear  you 
exclaiming  at  such  a  proposal:  "No;  let  the  General  go  di- 
^•ectlj  to  bis  purposes,  and  punish  whom  he  will,  and  as  he  w^ill, 


J.  w.  Gordon's  argument.  11 

without  the  deceitful  and  wicked  pretence  of  a  trial.  I  will  brave 
all  consequences  sooner  than  thus  surrender  my  manhood.  He 
shall  never  employ  me  in  a  mockery  so  foul,  and  so  cruel!" 
Every  honorable  mind  w^ould  so  feel  and  so  speak ;  and  none, 
I  am  sure,  more  promjftly  and  warmly  than  my  distinguished 
friend,  the  General,  who  now  commands  this  District;  and  un- 
der whose  authority  you  sit.  Fory  if  it  is  all  a  matter  of  com- 
mand aud  obedience,  then  let  the  command  and  its  execution 
stand  together,  without  the  intervention  of  this  hollow  form  of 
justice.  ^Do  not  mock  the  predestined  victims  with  the  delusive 
hopes  arising  from  the  forms  of  a  trial,  that,  from  first  to  last, 
onthis  tlieory,  can  not  rise  higher  than  a  miserable  trick  to  de- 
ceive the  looker  on;  and  divide  the  responsibility  of  acts  not 
capable  of  justification,  when  placed  before  the  world  in  their 
true  light.  Indeed,  on  such  a  theory,  you  do  not  constitute  a 
court  at  all,  in  any  received  sense  of  the  term ;  for  "a  court  is  a 
place  where  justice  is  judicially  administered." 

With  these  observations  I  shall  deliver  this  topic  to  your 
consideration  and  judgment. 

I  am  thus  brought  at  last  to  the  discussion  of  martial  law,  as 
the  basis;  and,  indeed,  the  only  basis  on  which  your  jurisdic- 
tion of  the  present  cause  can  possibly  be  sustained.  If  martial 
laio  doesj  in  fact,  exist  in  the  State  of  Indiana,  you  may  have 
jurisdiction.  If  it  does  not,  you  do  not,  and  can  not  possibly 
possess  such  jurisdiction.  The  question,  therefore,  recurs  upon 
us: 

Has  martial  law  an  actual  existence  in  the  State  of  Indiana 
to-day?  If  so,  how  has  it  received  such  existence?  Does  it 
exist  by  proclamation,  by  law,  or  by  necessity?  If  by  procla- 
raation,  or  law,  w^hen  was  the  proclamation  made,  or  the  law 
passed?  If  by  necessity,  when  did  that  necessity  arise;  and 
wherein  does  it  consist? 

As  the  first  step  toward  a  satisfactory  answer  to  these  ques- 
tions, let  us  determine  what  martial  law  really  is;  for  this  is  still 
a  question.  This  question  I  propose  to  answer  from  the  books. 
Smith  says: 

'^Martial  law  is  the  law  of  war,  that  depends  on  the  just,  but 
arbitrary  power  of  the  King  or  his  lieutenant;  for  though  the 
King  doth  not  make  any  law  but  by  common  consent  in  Par- 
liament, yet  in  time  of  war,  by  reason  of  the  necessity  of  it,  to 
guard  against  dangers  that  often  arise,  he  useth  absolute  power, 
BO  that  his  word  is  law."  Smith  on  the  English  Bepublic,  book 
2,  chap.  4. 

Sir  Matthew  Hale,  in  his  History  of  the  Common  Law,  says: 

'' Martial  law  is  not  in  truth  and  reality  a  law,  but  something 
indulged  rather  than  allowed  as  a  law;  the  necessity  of  govern- 
ment, order,  and  discipline  in  an  army  is  that  only  w^hich  gives 
these  laws  any  countenance."     1  His.  C.  L.,  p.  54. 


12  J.  w.  Gordon's  argument. 

I  make  this  quotation,  not  because,  in  the  present  state  of 
opinion  and  law,  either  in  England  or  America,  it  gives  us  a  very 
precise  and  accurate  notion  of  martial  law;  but  in  order  to 
bring  it  into  relation  to  a  criticism  which,  when  taken  in  con- 
nection with  the  state  of  British  military  law  at  the  time  the 
venerable  Hale  wrote,  is,  in  my  opinion,  entirely  unjust;  and,  to 
show  that,  at  that  time,  this  definition  was  as  accurate  and  com- 
plete as  could  be  given.  The  criticism  to  which  I  refer  is  that 
of  the  late  Attorney  General  Gushing.     He  says : 

"This  proposition  is  a  mere  composite  blunder,  a  total  mis- 
apprehension of  the  matter.  It  confounds  viartial  laio  and  mil- 
itary laid;  it  ascribes  to  the  former  the  uses  of  the  latter;  it 
erroneouslj^  assumes  that  the  government  of  a  body  of  troops 
is  a  necessity,  more  than  that  of  a  body  of  civilians,  or  citizens. 
It  confounds  and  confuses  all  the  relations  of  the  subject,  and 
is  an  apt  illustration  of  the  incompleteness  of  the  notions  of  the 
common-law  jurists  of  England  in  regard  to  matters  not  com- 
prehended in  that  Hmited  branch  of  legal  science.'^  8  Opinions 
of  the  Atfys  Gen.  865,  et  seq. 

I^ow%  I  beg  leave  to  say,  that  Sir  Matthew  Hale  w^as  not  a 
mere  common-law  lawyer.  His  writings  show  him  to  have  been 
familiar  with  the  civil  law;  and  to  have  read  extensively  the 
continental  writers  on  public  law.  N"or  is  it  true  that  his  obser- 
vations on  the  nature  and  uses  of  martial  law  constitute  a  mere 
"composite  blunder,"  "a  total  misapprension  of  the  question." 
The  "blunder,"  on  the  contrary,  is  on  the  part  of  the  learned 
Attorney  General;  and  not  on  that  of  the  venerable  Chief  Jus- 
tice. It  will  be  apparent  that  I  am  right,  if  we  refer  to  the 
state  of  England  and  English  military  law"  at  the  time  the  His- 
tory of  the  Common  Law  was  written.  Its  author  died  in  1676. 
Up  to  that  time,  England  had  properly  no  military  code.  Her 
armies  were  really  subject  to  such  laws  as  the  King  might  im- 
pose, where  a  limit  upon  his  will  in  this  respect  had  not  been 
fixed  by  Parliament.  It  was  not  until  after  Hale  wrote,  and  had 
been  gathered  to  his  fathers,  that  the  first  inilitayy  bill  was 
passed,  and  military  law  thereby  placed  upon  a  different  footing 
from  that  of  martial  law.  The  will  of  the  King,  until  then,  was 
the  law  of  the  army — a  will  regulated,  indeed,  by  the  principles 
of  the  civil  law;  but,  even  in  that  respect,  controlled  no  further 
than  he  chose;  and  this  w^ill  is  the  same  w^hether  applied  to  sol- 
diers or  civilians.  "It  is  not  in  truth  and  reality  a  law."  It 
was,  nevertheless,  pretty  much  all  the  law  known  to  the  British 
army  in  the  time  of  Hale.  1  Bl.  Com.,  chap.  13;  2  Sullivan's 
Lectures,  p.  257.  In  this  view"  of  the  facts  of  history,  and  the 
state  of  military  law  when  Hale  wrote,  the  learned  Attorney 
General  seems  to  be  guilty  of  the  blunder  which  he  attributes 
to  the  Chief  Justice. 

The  first  member  of  Mr.  Stephens'  definitions  of  martial  law 
is  sufficiently  accurate.     He  says: 


^nHt-CCfc'^vY 


J.  w.  Gordon's  argume^'t.  18 

^'Martial  law  may  be  defined  as  the  law,  (whatever  it  may  be,) 
which  is  imposed  by  military  power."  2  Com.  Laws  of  Eng- 
land, p.  561. 

The  Duke  of  Wellington  was  also  right  when  he  defined  it 
thus: 

^' Martial  luw  is  neither  more  nor  less  than  the  will  of  the 
General  who  commands  the  army."  Hansard's  Debates,  (3d 
series,)  voL  115,  p.  880. 

And  again,  when  he  wrote  as  follows: 

"Military  law,"  [i.  e.  martial  law,']  "as  apphed  to  any  persons 
excepting  officers,  soldiers,  and  followers  of  the  army,  for  whose 
government  there  are  particular  provisions  of  law,  in  all  well 
regulated  countries,  is  neither  more  nor  less  than  the  ivill  of  the 
General  of  the  armyT     Despatches,  vol.  6,  p.  43. 

The  distinction  between  martial  and  military  law  is,  in  this  last 
definition,  made  plain,  the  latter  being  confined  to  provisions  of 
law  for  the  regulation  of  the  army;  and  the  former,  to  such  as 
the  will  of  the  General  may  impose  upon  those — not  soldiers — 
under  martial  laio. 

Earl  Grey,  in  discussing  the  questions  growing  out  of  a  declar- 
ation of  martial  law  in  Ceylon  again  expresses  the  idea  with 
sufficient  accuracy.     He  says : 

"What  is  called  proclaiming  martial  law  is  no  law  at  all;  but 
merely  for  the  sake  of  public  safety,  in  circumstances  of  great 
emergency,  setting  aside  all  law  and  acting  under  military  power ; 
a  proceeding  which  requires  to  be  followed  up  by  an  act  of  in- 
demnity when  the  disturbances  are  at  an  end."  Hough's  Prec. 
in  Mil.  Law,  p.  515. 

Judge- Advocate-General  Dundas,  in  writing  upon  the  sub- 
ject, says: 

^''Martial  law  is  not  a  written  law;  it  arises  on  a  necessity  to 
be  judged  of  by  the  Executive,  and  ceases  the  instant  it  can  pos- 
sibly be  allowed  to  cease.  Military  law  has  to  do  only  with  the 
land  forces  of  the  Crown,  mentioned  in  the  second  section  of 
the  mutiny  act.  Martial  law  comprises  all  persons,  all  are  under 
it,  whether  they  be  civil  or  military."  Second  Rep.  on  Ceylon, 
Hough,  supra,  p.  535. 

"When  martial  law  is  proclaimed,"  says  Hough,  "courts- 
martial  are  thereby  vested  with  such  a  summary  proceeding, 
that  neither  time,  place  nor  persons  are  considered.  jSTecessity 
is  the  only  rule  of  conduct;  nor  are  the  punishments  which 
courts-martial  may  inflict  under  such  authority  limited  to"  such 
as  are  prescribed  by  law.     Hough  on  Courts-Martial,  p.  383. 

Captain  Benet,  in  his  treatise  on  Military  Law  and  Courts- 
Martials,  in  speaking  of  martial  law,  says  : 

'•'  Martial  law,  then,  is  that  military  rule  and  authority  which 
exist  in  time  of  war,  and  is  conferred  by  the  laws  of  war,  in 
relation  to  persons  and  things,  under  and  within  the  scope  of  ac- 


14 

tive  military  operations  in  carrying  on  the  war,  and  which  extin- 
guishes or  suspends  civil  lights,  and  the  remedies  founded  upon  them 
for  the  time  being,  so  far  as  it  may  appear  to  be  necessary,  in 
order  to  the  full  accomplishment  of  the  purpose  of  the  war,  the 
party  exercising  it  being  liable  in  an  action  for  any  abuse  of  the 
authority  thus  conferred.  It  is  the  application  of  military  gov- 
ernment— the  government  of  force — to  persons  and  property 
within  the  scope  of  it,  according  to  the  laws  and  usages  of  war, 
to  the  exclusion  of  municipal  goverment,  in  all  respects  where 
the  latter  would  impair  the  efficiency  of  military  law,  or  mili- 
tary action."     Benet  on  Mil.  Law  and  Courts-Martial,  p.  14. 

The  late  commander-in-chief  of  the  army  of  the  United 
States,  Major  General  Halleck,  observes: 

"  We  remark,  in  conclusion,  that  the  right  to  declare,  apply 
and  exercise  martial  law  is  one  of  the  rights  of  sovereignty,  and 
is  as  essential  to  the  existence  of  a  State,  as  is  the  right  to  de- 
clare or  carry  on  w^ar.  It  is  one  of  the  incidents  of  war,  and, 
like  the  power  to  take  human  life  in  battle,  results  directly  and 
immediately  from  the  fact  that  war  legally  exists.  It  is  a  power 
inherent  in  every  government,  and  must  be  regarded  and  recog- 
nized by  all  other  governments;  but  the  question  of  the  author- 
ity of  any  particular  functionary  to  exercise  this  power  is  a  mat- 
ter to  be  determined  by  local,  and  not  by  international  law. 
Like  a  declaration  of  seige,  or  blockade,  the  power  of  the  officer 
who  makes  it,  is  to  be  presumed  until  disavowed;  and  neutrals 
who  attempt,  in  derogation  of  that  authority,  do  so  at  their 
peril."     International  Law  and  Laws  of  War,  p.  380. 

Again,  he  says : 

*'The  English  common  law  authorities  generally  confound 
mar^M^  with  military  law;  and,  consequently  throw  very  little 
light  upon  the  subject,  considered  as  a  domestic  fact;  and  in 
parliamentary  debates  it  has  usually  been  discussed  as  a  fact, 
rather  than  as  forming  any  part  of  their  system  of  jurispru- 
dence. ^Nevertheless,  there  are  numerous  instances  in  which 
martial  law  has  been  declared  and  enforced,  in  time  of  rebellion 
or  insurrection,  not  only  in  India,  and  British  Colonial  Posses- 
sions, but  also  in  England  and  Ireland.  It  seems  that  no  act  of 
Parliament  is  required  to  precede  such  declaration,  although 
it  is  usually  followed  by  an  act  of  indemnity,  when  the  disturb- 
ances which  called  it  forth  are  at  an  end,  in  order  to  give  consti- 
tutional existence  to  the  fact  of  martial  law."     Id.  874. 

I  desire  to  remark,  in  passing,  that  a  careful  study  of  the 
English  authorities  alluded  to,  will,  perhaps,  explain  them,  and 
show  that  their  confusion  is  only  apparent,  in  relation  to  this 
subject.  In  the  iirst  place,  as  already  shown,  the  English  had 
no  distinct  system  of  military  law  until  after  the  revolution  of 
1688;  and  before  that  time  their  armies  were  subject,  in  a  great 
degree,  to  simple  martial  law.     It  is  true  the  Kings'  will  was  in 


J.  w.  Gordon's  argument.  15 

some  measure  restrained  by  statute.  In  the  second,  as  the  only 
ground  upon  which  that  will — martial  law — can  apply  to  others 
than  soldiers  within  the  kingdom,  is  that  of  necessity^  it  was  both 
natural  and  philosophical  for  them  to  regard  it  as  simply  a  fact. 
Indeed,  it  is  nothing  else  but  a  fact  both  in  its  origin  and  its 
application.  It  originates  in  necessity,  which  is  a  fact.  It  is 
the  will  of  the  commanding  general,  who  always  determines  its 
extent  and  the  mode  of  its  application.  It  will  thus  assume  a 
different  form — will  be  more  or  less  sweeping — cruel  or  merci- 
ful, according  to  the  exigency  of  each  particular  instance  of  its 
exercise,  as  well  as  the  character  and  temper  of  him  who  ad- 
ministers it.  A  thing  thus  variant  and  uncertain  can  not  be 
allowed  as  a  law;  for  a  law  must  be  a  rule  prescribed,  must  be 
uniform  in  its  application,  which  can  never  be  said  of  any  thing 
resulting  from  mere  necessity,  and  subject  for  its  measure  and 
duration  to  mere  human  will.  The  only  element  common  to 
such  a  state  of  administration  and  law,  is  that  both  are  applied 
to  the  affairs  of  men.  It  will,  therefore,  be  subject,  of  course,  to 
the  judgment  of  public  opinion  as  all  other  facts  are,  in  which, 
moral  agents  and  relations  are  involved;  but  whatever  restraint 
that  imposes  can  not  change  the  fact  into  a  law.  IlTor,  it  w^ouldi 
seem,  does  the  right  of  a  belligerent  depend  upon  the  legality 
of  the  war,  as  remarked  by  General  Halleck.  On  the  contrary,, 
we  might  naturally  suppose  that  he  who  entered  upon  an  illegal 
and  unjust  Avar,  would  be  most  likely  to  avail  himself  first  of 
the  advantages  of  martial  law,  which,  in  the  language  of  Mr. 
Adams,  would  "sweep  the  laws  of  his  adversary  by  the  board," 
and  substitute  his  discretion  therefor.  Hence,  upon  the  whole, 
I  see  no  reason  why  the  learned  general  should  criticise  the 
English.  The  last  two  authors  cited,  seemingly  without  per- 
ceiving it,  confine  the  operation  of  martial  law  to  the  territory 
of  public  enemies,  or  to  the  immediate  theater  of  military  oper- 
tions.  In  either  view,  their  remarks  are  inapplicable  to  our 
condition  here;  for  we  may  admit  the  most  unbounded  author- 
ity to  exercise  martial  law  in  our  generals,  in  carrying  on  a  for- 
eign war  in  an  enemy's  country ;  or  in  a  domestic  war  ^'within  the 
scope  of  active  military  operations,''  and  it  will  not  follow  that  any 
such  authority  can  exist  in  a  State  devoted  to  the  government, 
and  in  no  sense  the  theater  of  ^'active  military  operations.''  In 
the  foreign  country  the  citizen  will  be  subject  to  international 
law;  and  our  public  enemy  can  not  look  beyond  that  to  see 
whether,  in  the  exercise  of  martial  law,  we  disregard  our  own 
constitution.  At  home,  the  fact  of  war  and  the  immediate  pres- 
ence of  hostile  armies  puts  an  end  to  all  other  laws;  and  martial 
law,  for  the  time  being,  exists  by  necessity.  Military  power  is 
rather,  in  such  case,  a  law  to  itself.  They  leave  us,  therefore,  in. 
quite  as  much  doubt  and  confusion,  so  far  as  the  case  in  handi 
is  concerned,  as  they  found  us. 


16  J.  w.  Gordon's  argument. 

I  beg  your  pardon  for  introducing  liere,  a  little  out  of  place, 
the  observations  ujDon  martial  law  of  some  of  our  own  leading 
politicians.  I  say  politicians  advisedly;  for  I  do  not  think  that 
they  were  generally  actuated  in  the  utterance  oi  these  opinions 
by  the  motives  that  should  govern  statesmen ;  and  I  do  not 
think  so,  because  the  whole  spirit  of  the  debates  in  which  they 
were  delivered,  was  of  a  most  decided  and  even  bitter  partizan 
tone.  I  allude  to  the  debates  on  remitting  the  fine  imposed  by 
Judge  Hall  upon  General  Jackson,  at  ^ew  Orleans,  in  1815,  for 
contempt  of  court  in  refusing  obedience  to  a  writ  of  habeas  cor- 
pus. Democrats  in  Congress  were  in  favor  of  the  measure, 
while  most,  if  not  all  the  Whigs,  were  opposed  to  it.  Mr.  John 
Q.  Adams,  then  in  the  House  of  Representatives,  made  it  an 
occasion  for  striking  at  both  the  Democratic  party  and  slavery. 
He  maintianed  that  the  measure  was  a  hobby  on  which  leading 
Democrats  were  seeking  to  elevate  themselves  to  the  Presidency 
upon  General  Jackson's  popularity;  and  then  turned  upon  the 
slaveholders  of  the  South,  and  reminded  them  how  easy  it  would 
be,  in  some  fit  emergency,  to  employ  martial  law  for  the  aboli- 
tion of  slavery.  And  such  generally  was  the  spirit  of  the  de- 
bate; a  spirit,  one  would  think,  little  calculated  to  render  opin- 
ions remarkable  for  their  legal  accuracy.  It  was  in  this  debate 
that  Mr.  Adams  said  : 

*'The  power  of  Congress" — the  power  to  declare  martial 
law — "has, perhaps,  never  been  called  into  exercise  under  the 
present  constitution.  But  when  the  laws  of  war  are  in  force, 
what,  I  ask,  is  one  of  those  laws  ?  It  is  this :  that  when  a  country 
is  invaded,  and  two  hostile  armies  are  met  in  m.artial  array,  the 
commanders  of  both  armies  have  power  to  emancipate  all  the 
slaves  in  the  invaded  territory. 

"And  here  I  recur  again  to  the  example  of  General  Jackson. 
What  are  you  about  in  Congress?  You  are  *bout  passing  a 
law  to  refund  to  General  Jackson,  the  amount  of  a  certain  fine 
imposed  upon  him  by  a  judge  under  the  laws  of  Louisiana. 
You  are  going  to  refund  him  the  money  with  interest,  and  this 
you  are  going  to  do,  because  the  imposition  of  the  fine  was  un- 
just. And  why  was  it  unjust?  Because  General  Jackson  was 
acting  the  under  laws  of  war ;  and  because  the  moment  you  place 
a  military  commander  in  a  district  that  is  the  theater  of  war,  the 
laws  of  war  apply  to  that  place. 

"  I  might  furnish  a  thousand  proofs  to  show  that  the  preten- 
sions of  the  gentlemen  to  the  sanctity  of  their  municipal  insti- 
tutions, under  a  state  of  actual  invasion,  and  actual  war,  whether 
servile,  civil,  or  foreign,  is  wholly  unfounded,  and  that  the. laws 
of  war  do  in  all  such  cases  take  precedence.  I  lay  this  down 
as  the  law  of  nations.  I  say,  the  military  authority  takes,  for 
,the  time,  the  place  of  all  municipal  institutions,  and  of  slavery 
among  the  rest;  and  that,  under  that  state  of  things,  so  far  from 


J.  w.  Gordon's  argument.  17 

its  being  true,  that  the  States  where  slavery  exists  have  the  ex- 
clusive management  of  the  subject,  not  only  tbe  President  of 
the  United  States,  but  the  commander  of  the  army,  has  power 
to  order  the  universal  emancipation  of  the  slaves.  I  have  given 
here  more  in  detail  a  principle  which  I  have  asserted  on  this 
floor  before  now;  and  of  which  I  have  no  more  doubt  than  that 
you,  sir,  occupy  that  chair." 

In  the  course  of  the  same  debates,  Mr.  Buchanan,  taking  it 
for  granted  that  General  Jackson  had  done  no  more  than  his 
duty  in  declaring  martial  law  in  I^ew  Orleans,  in  1814  and  1815, 
said: 

"If  General  Jackson  did  no  more  than  his  duty  in  declaring 
martial  law,  the  moment  that  declaration  w^as  made,  the  official 
functions  of  Judge  Hall  ceased,  with  regard  to  his  power  of 
issuing  writs  of  habeas  corpics,  which  might  interfere  with  the 
defence  of  the  city.  As  soon  as  martial  law  was  in  force  every 
citizen  of  New  Orleans,  whether  sustaining  an  official  character 
or  not,  was  bound  to  submit  to  it.         *  *  *  * 

*  *  *  *  For  it  was  quite  a  plain  case, 

that,  if  martial  law  did  not  supercede  and  put  in  abeyance  the 
civil  power,  it  would  be  wholly  insufficient  in  attaining  the  only 
objects  for  which  alone  it  could  be  tolerated  or  justified." 

Mr.  Douglas,  in  the  House  of  Representatives,  maintained 
the  same  principles;  but  from  his  statement  of  the  case  confined 
their  operation  to  the  defence  of  the  city;  in  other  words,  to  a 
state  of  siege.     Among  other  things  he  said: 

"I  maintain  that,  in  the  exercise  of  the  power  of  proclaim- 
ing martial  law,  General  Jackson  did  not  violate  the  constitu- 
tion, nor  assume  to  himself  any  authority  not  fully  authorized 
and  legalized  by  his  position,  his  duty  and  the  necessity  of  the 
case.  General  Jackson  was  the  agent  of  the  government,  legally 
and  constitutionally  authorized  to  defend  the  city  of  New  Or- 
leans. It  was  his  duty  to  do  this  at  all  hazards.  It  was  then 
conceded,  and  is  now  conceded,  that  nothing  but  martial  laxo 
would  enable  him  to  perform  that  duty.  His  power  was  com- 
mensurate with  his  duty,  and  he  was  authorized  to  use  the 
means  essential  to  its  performance.  This  principal  has  been 
recognized  and  acted  upon  by  all  civilized  nations,  and  is  famil- 
iar to  all  who  are  conversant  with  military  history.  It  does  not 
imply  the  right  to  suspend  the  laws  and  civil  tribunals  at  pleasure. 
The  right  grows  out  of  the  necessity.  The  principle  is  that  the 
commanding  General  may  go  as  far,  and  no  farther  than  is  ab- 
solutely necessary  to  the  defence  of  the  place  committed  to  his 
protection.  There  are  exigencies  in  the  history  of  nations, 
when  necessity  becomes  the  paramount  law,  to  which  all  other 
considerations  must  yield.  If  it  becomes  necessary  to  blow  up 
a  fort,  it  is  right  to  do  it.  If  it  is  necessary  to  sink  a  ship, 
it  is  right  to  sink  it.  If  it  is  necessary  to  burn  a  city,  it  is  right 
to  burn  it."     Life  and  Speeches  of  Senator  Douglas,  pp.  25,  26. 


18  J.  w.  gokdon's  argument. 

And  so  I  might  go  on,  adding  opinions  and  definitions  of 
martial  laio  to  endless  extent.  I  ^vill  quote  but  one  more;  and 
that  is  the  opinion  of  Attorney  General  Gushing  already  refer- 
red to.     He  sa3'8 : 

"  31artial  law,  as  exercised  in  any  country  by  the  commander 
of  a  foreign  army,  is  an  element  of  the  jus  belli.  It  is  incidental 
to  a  state  of  solemn  war,  and  appertains  to  the  law  of  nations. 
The  commander  of  the  invading,  occupying,  or  conquering 
army,  rules  the  invaded,  occupied,  or  conquered  foreign  country, 
with  supreme  power,  limited  only  by  international  law,  and  the 
orders  of  the  sovereign  or  government  he  serves  or  represents. 
For  by  the  law  of  nations,  the  occupatio  bellica,  in  a  just  war, 
transfers  the  sovereign  power  of  the  enemy's  country  to  the 
conqueror.  (Wolff's  Jus.  Gentium,  §  255;  Grotius,  De  Jure  et 
Pads,  ed.  Cocceii,lib.  iii,  cap.  8.) 

Such  occupation  by  right  of  war  is,  so  long  as  it  is  military  only, 
that  18  flagrante  hello,  will  be  the  case  put  by  the  Duke  of  Wel- 
lington, of  all  the  powers  of  the  government  resumed  in  the 
hands  of  the  commander-in-chief.  If  any  local  authority  con- 
tinue to  exist,  it  will  be  w^ith  his  permission  only,  and  with  the 
power  to  do  nothing,  except  what  in  his  plenary  discretion,  or 
his  own  sovereign,  through  him,  shall  see  fit  to  authorize.  The 
law  of  the  land  will  have  ceased  to  possess  any  proper  vigor. 

Thus,  while  the  armies  of  the  United  States  occupied  difiter- 
ent  provinces  of  the  Mexican  Republic,  the  respective  com- 
manders were  not  limited  in  authority  by  any  local  law.  They 
allowed,  or  rather  required,  the  magistrates  of  the  country, 
municipal  or  judicial,  to  continue  to  administer  the  laws  of  the 
country  among  their  own  countrymen,  but  in  subjection  always 
to  the  miltary  power,  which  acted  summarily  and  according  to 
discretion,  when  the  belligerent  interests  of  the  conqueror  re- 
quired it,  and  which  exercised  jurisdiction  either  summarily,  or 
by  means  of  military  commissions,  for  the  protection  or  punish- 
ment  of  citizens  of  the  United  States  in  Mexico. 

That,  it  would  seem,  was  one  of  the  forms  of  martial  laio.  A 
violent  state  of  things,  to  cease,  of  course,  when  hostilities  should 
cease,  and  military  occupation  be  changed  into  political  occupa- 
tion." {Mphinstone  v.  Bedruchund,  1  Knapp's  Rep.  p.  338; 
Cross  V.  Harrison,  16  How.  p.  164.) 

If  we  now  return,  and  endeavor  to  glean  from  all  these  authori- 
ties and  opinions,  an  idea  of  martial  laio,  as  applicable  to  the 
internal  affairs  of  a  State,  we  shall  find  ourselves  scarcely  nearer 
to  it  than  we  were  at  the  start.  The  laws  of  war  regulate  a 
state  of  war,  and  define  the  rights  of  parties  to  it,  with  respect 
to  each  other;  and  can  only  afford,  therefore,  a  remote  analogy 
for  our  guidance  in  the  internal  concerns  of  a  State  in  which 
riots  or  rebellions  call  into  requisition  the  military  power. 
True,  when  a  civil  war  assumes  the  magnitude  of  our  present 


19 

contest,  and  the  parties  thereto — rebels  on  the  one  side  and 
government  on  the  other — from  the  necessity  of  the  case,  as 
well  as  from  considerations  of  humanity,  are  compelled  to  adopt 
the  public  law  of  war,  and  to  regulate  their  conduct  according 
to  its  principles,  the  laws  of  w^ar  become,  to  that  extent,  a  suffi- 
cient guide.  But  all  this  does  not  in  the  least  help  us,  in  regard 
to  those  States  which  have  never  been  engaged  against  the  gov- 
ernment. Whether  any,  and  if  any,  what  assertion  of  military 
power,  incompatible  with  civil  institutions  and  civil  rights,  is 
admissible  in  those  States,  does  not  appear  from  the  books  that 
treat  of  martial  law.  Earl  Gray  seems  to  approach  the  point 
more  nearly  than  the  rest;  for  in  such  case  martial  law  would 
"m  truth  and  fact  be  no  law  at  all;  hut  the  setting  aside  of  all  law 
and  acting  under  military  power J^  Supra.  And  this  he  says  can 
only  be  done  "in  circumstances  of  great  emergency,"  and  must 
be  followed  "by  an  act  of  indemnity."  It  is,  therefore,  the 
substitution  of  military  force  for,  and  to  the  exclusion  of,  the 
laws;  and  can  be  justified  no  further  than  is  absolutely  neces- 
sary. And  all  the  authorities  and  opinions  cited  go  to  this  ex- 
tent, and  no  further. 

Has  this  substitution,  then,  of  military  power  for  civil  law, 
and  civil  tribunals  and  institutions  taken  place  in  Indiana  ?  And 
if  so,  upon  what  necessity?  When  was  it  done?  Who  determined 
the  necessity,  and  made  the  substitution  ?  Where  is  the  act  of 
Congress,  the  proclamation  of  the  President,  or  the  order  of  the 
military  commander  of  the  department,  or  the  district?  Have 
these,  or  has  any  of  them  acted  upon  this  subject;  and,  if  so,  to 
what  extent?  And  above,  and  before  all,  where  is  the  grant  of 
authority  to  any,  or  all  of  them  combined,  or,  indeed,  to  the 
whole  government,  thus  to  "set  aside  all  law,"  and  substitute 
"military  power"  therefor?  To  assume  that  any  such  author- 
ity can  exist  in  a  limited  government  is  a  self-contradiction. 

Let  us  examine  briefly  the  nature  of  the  Anglican  system  of 
civil  liberty — institutional  government — a  system  which  in  a 
very  large  measure  we  have  inherited  or  adopted ;  and  see 
whether  such  a  system  as  martial  laic  is  at  all  compatible  there- 
with.    Can  the  two  exist  together? 

I  shall  endeavor  to  answer  this  question  by  a  brief  review  of 
English  history  and  law;  for  if  this  power  "to  set  aside  all 
law,"  and  to  "  act  under  military  power,"  be  at  all  consistent 
with  such  a  system  of  law  and  government,  we  shall  thus  be 
able  to  determine  in  what  emergencies  and  to  what  extent. 

I  enter  the  more  cheerfully  upon  this  review,  because  it  will 
enable  me  to  correct  my  friend,  the  Judge  Advocate,  in  an 
assertion  which  he  has  frequently  made  during  the  progress  of 
these  trials,  namely:  "  We  are  making  new  precedents  daily. ^^ 
Now,  I  think,  I  shall  be  able  to  show  him  that  we  are  following 
old  and  bad  precedents — the  work  of  wicked  and  lawless  princes 


20  J.  w.  Gordon's  argument. 

in  evil  times — which  were  condemned,  disallowed,  and  reversed 
bj  better  princes  immediately  upon  the  return  of  better  times ; 
and  which  are  only  not  known  to  him,  because  they  have  so 
long  remained  dead  and  buried  among  the  rubbish  of  barbarous 
ages,  that  he  has  not  been  able,  or,  at  least,  has  not  chosen  to 
dig  them  up  for  his  own,  and  your  guidance  on  this  occasion. 
I  shall  aid  him  in  this  respect ;  and,  while  I  do  so,  must  beg 
his  pardon,  and  that  of  the  government  he  represents,  for  dis- 
pelling the  illusion  that  either  is  entitled  to  patent  a  new  prece- 
dent. In  this  regard  they  will  find,  after  all,  and,  indeed,  they 
should  have  known  from  the  first,  that  the  farther  back  they  go 
in  the  history  of  the  past,  the  more  precedents  they  will  find 
for  the  easy  but  ruinous  substitution  oi  force  for  lav:.  Wher- 
ever a  free  people  have  lost  their  liberties,  there  will  be  found 
a  precedent  in  point.  The  history  of  Greece  and  Rome  is 
fruitful  of  such  precedents.  Solomon  had  wiser  conceptions 
of  the  methods  by  which  history  continually  repeats  itself,  than 
to  speak  of  new  precedents ;  and  the  sum  of  wisdom  on  this 
point,  as  in  his  day,  still  remains  happily  expressed  in  these 
words  :     "There  is  no  new  thing  under  the  sun." 

I  will  not  go  back  in  the  history  of  English  law  beyond 
Magna  Charta;  for  that  "solemn  instrument"  has  been  justly 
regarded  as  laying  the  imperishable  fou!idations  of  the  great 
political  institutions  of  that  country.  (Creasy  on  the  English 
Constitution,  3.)  Ours,  in  America,  rest  on  the  same  foundations 
— are  referable  to  the  same  origin. 

The  29th  chapter  of  that  instrument,  as  given  by  Henry  3, 
contains  these  provisions  which  have  found  a  place  in  all  our 
American  Constitutions  : 

''NuUus  liber  homo  capiatur^  vel  imprison etur,  aut  dlsseisietur  de 
libero  tenemento  suo,  vel  libertatibus,  vel  liberis  consuetudinibus  suis, 
aut  utlagatur,  aut  exuletur,  aut  aliquo  modo  distruatur,  nee  super 
eum  ibimus,  nee  super  eum  mittimus^  nisi  per  legale  judicium,  pari- 
um  suorum.,  vel  per  legem  terrce"  2  Coke's  Inst.,  p.  45.  Which 
has  been  rendered  as  follows : 

"No  freeman  shall  be  taken,  or  imprisoned,  or  disseised,  or 
outlawed,  or  exiled,  or  banished,  or  in  any  ways  destro^'ed;  nor 
will  we  pass  upon  him,  nor  will  we  send  upon  him,  unless  by  the 
lawful  judgment  of  his  peers,  or  by  the  law  of  the  land."  Crea- 
sy, Supra,  p.  134. 

"These  are,"  as  Mr.  Creasy  observes  "all  words  that  should 
be  carefully  read  over,  and  over,  and  again  ;  for,  as  Lord  Coke 
quaintly  observes,  in  his  comments  on  them;  'as  the  gold-finer 
will  not  out  of  the  dust,  threds,  or  shreds  of  gold  let  passe  the 
least  crum,'  in  respect  of  the  excellency  of  the  metal ;  so  ought 
not  the  learned  reader  to  passe  any  syllable  of  this  law,  in  re- 
spect of  the  excellency  of  the  matter '  "   Id.,  135 ;  and  2  Inst,  57. 


J.   W.    GORDON^S   ARGUMENT.  21 

Lord  Coke  in   commenting  upon  the  words:  "IlTo  man  de- 
stroyed," &c.,  gives  the  following  commentary  and  illustration: 

*'Tliat  is,  forejudged  of  life,  or  limb,  disherited,  or  put  to  tor- 
ture or  death."  ^  '^  ''  M.  :{.  :ic 

"Thomas,  Earl  of  Lancaster,  was  destroyed,  that  is,  adjudged 
to  die  as  a  traitor,  and  put  to  death,  in  14  E.  2,  and  a  record 
thereof  made ;  and  Henry,  Earl  of  Lancaster,  his  brother  and 
heir,  was  restored  for  two  principal  errors  against  the  same 
Thomas,  Earl :  1.  Quod  non  fait  araniatus,  et  ad  responsionem. posi- 
tus  tempore  pads,  eo  quod  cancellaria  et  alice  curim  llegis  fuer, 
apertcE,  in  quibus  lex  fiebat  unicuique  prout  fieri  consuevit:  that  ia 
to  say  :  Because  he  was  not  arraigned,  and  because  in  time  of 
peace,  he  was  put  to  trial  while  the  Chancery  and  other  courts 
of  the  King  were  open,  in  each  of  which  the  law  was  regularly 
administered;  2.  Quod  contra  cartam  de  libertatibus^  cum  dictus 
Thomas  fait  unus  parium  et  magnatum  regni,  in  qua  continetur — 
and  reciteth  this  chapter  of  Magna  Charta  and  specmWy  quod 
JDominus  Lex  non  super  eum  ibit;  nee  mittet;  nisi  per  legale  judi- 
cium  parium  suorum,  contra  legem,  et  contra  tenorum  Magna* 
Charta;'th'dt  is,  because  it  was  against  the  charter  of  liberties,  since 
the  said  Thomas  was  one  of  the  peers  and  magnates  of  the 
realm  in  which  it  is  preserved ;  and  reciteth  this  chapter  of 
Magna  Charta,  and  specially  "because  the  Lord  the  King. will  not 
proceed  against  any  one,  nor  send  upon  him  unless  by  the  legal 
judgment  of  his  peers.  Nevertheless,  by  the  aforesaid  pro- 
ceeding, in  time  of  peace,  without  arraignment,,  or  pleading,  or 
the  legal  judgment  of  his  peers,  against  law,  and  the  terms  of 
Magna  Charta,  he  was  put  to  death.  More  examples  of  this 
kind  might  be  found."     Id.,  supra. 

This  case,  when  the  mode  of  trial  is  shown,  is  the  reversal  of 
a  precedent  which  the  Judge- Advocate  would,  perhaps,  style  "a 
new  precedent;"  for  the  historian  tells  us  that  Thomas  of 
Lancaster  was  adjudged  to  death  by  a  kind  of  military  court, 
extemporized  by  the  King,  and  consisting  of  himself  and  a  few 
Earls  anil  Barons.  2  Lingard  His.  Eng.,  p.  248,  and  note;  ^; 
Hume  His.  of  Eng.,  pp.  159,  160. 

The  learned  Coke  adds,  immediately  after  citing  this  case,  and, 
its  reversal — 

"Every  oppression  against  law,  by  color  of  any  usurped  au- 
thority, is  a  kind  of  destruction;  for  Quando  aliquid prohibitur,. 
prohibiter  et  omiie,  per  quod  devenitur  ad  illud;  and  it  is  the  most 
grievous  oppression  that  is  done  by  color  of  justice."  Id.,  sup. 
Tlie  reversal  of  a  second  precedent  that  might  be  regarded  as 
new,  is  recited  by  Sir  Matthew  Hale  in  his  History  of  the  Com- 
mon Law  ;  and  is  thus  given  : 

"  The  exercise  of  martial  law,  whereby  any  person  should  lose 
his  life,  or  member,  or  liberty,  may  not  be  permitted  in  time  of 
peace,  when  the  King's  Courts  are  open  for  all  persons  to  receive- 
3 


22  J.  w. 

justice  according  to  the  laws  of  the  land.  This  is  in  substance 
declared  by  the  Petition  of  Right,  3  Car.  1,  whereby  such 
'Commissions  and  martial  law  were  repealed  and  declared  con- 
trary to  law.  And  accordingly  was  that  famous  case  of  Ed- 
mund, Earl  of  Kent,  who  being  taken  at  Pomfret,  15  Edw.  2, 
Jthe  King  and  divers  lords  proceeded  to  give  sentence  of  death 
against  him,  as  in  a  kind  of  military  court,  b}^  a  summary  pro- 
'Ceeding,  which  judgment  was  afterwards,  in  1  Edw.  3,  reversed 
•in  Parliament.  And  the  reason  of  that  reversal  serving  to  the 
purpose  in  hand,  I  shall  here  insert  it  as  entered  in  the  record, 
viz :  '  Quod  cum.quicunq;  homo  ligeiis  domini  regis  fro  sediiionibus, 
<5'C.,  tewi-pore  pads  captus  et  in  quacunque  curia  domini  regis  ductus 
fuerit  de  ejusmodi  seditionibus  et  aliis  feloniis  sibi  impositis  per  legem 
et  consuetudineregni  arrectari  debet  et  responsionem  adduci,  et  indeper 
•eommunem  legem antequam fuerit  morti  adjudicand'  (triari)  ^c.  Unde 
cum  notorium.  sit  et  manifestum  quod  totum  tempus  quo  impositum 
fuit  eidem  comiti  propter  mala  et  facinora  fecisse,  ad  tempus  in  quo 
captus  fait  et  in  quo  morti  adjudicatus  fuit,  fuit  tempus  pads  maximce, 
'Cum  per  totum  tempus  prmdictum.  et  cancellaria  et  alice  plac.  curice 
domini  regis  apertxfuer.  in  quibus  cuilibet  lex  fiebatur  sicut  fieri  con- 
suevit,  nee  idem  dominis  rex  unquam  tempore  illo  cum  vexillis  expli- 
'talis  equitabaty  ^c."     Which  record  may  be  rendered  thus: 

"  Whenever  the  subject  of  the  Lord  the  King,  shall  be  ar- 
trested  for  sedition  in  time  of  peace,  before  he  can  be  adjudged 
to  death  according  to  the  common  law,  he  must  be  taken  into 
some  court  of  the  King  and  held  to  answer  for  such  seditions 
and  other  felonies;  whence  it  follows,  that  when  it  is  made 
known  and  manifest,  that  all  the  time  during  which  it  is  alleged 
that. the  crimes  were  done,  on  account  of  which  he  was  arrested, 
to  the  time  in  which  he  was  taken  and  adjudged  to  death,  was  a 
time  of  profound  peace,  and  during  all  the  time  aforesaid,  the 
Chancery  and  other  courts  of  the  King  were  open  in  which  any 
Jaw  could  be  executed  as  it  was  the  custom  to  have  done,  the 
eame  Lord  the  King  h'ad  no  power,  during  that  time,  to  ex- 
^ercise  military  control. 

"And  accordingly  the  judgment  was  reversed ;  for  martial  law, 
which  is  rather  indulged  than  allowed,  and  that  only  in  case  of  ne- 
cessity, in  time  of  open  war,  is  not  permitted  in  time  of  peace  lohen 
ike  ordinary  courts  of  justice  are  open  J'     1  His.  C.  L.  pp.55,  56. 

In  order  that  these  precedents  may  have  their  due  weight  in 
•this  case,  I  beg  leave  to  give  a  legal  definition  of  what  is,  in  this 
respect,  held  to  be  a  time  of  peace  in  England,  according  to  the 
<;ommon  law.  I  will  quote  the  precise  language  of  Lord  Coke, 
who  says: 

"  When  the  courts  of  justice  are  open,  and  the  judges  and  minis- 
ters of  the  same,  may  by  law  protect  men  from  oppression  and 
violence,  and  distribute  justice  to  all,  it  is  said  to  be  a  time  of  peace. 
fio,  when  by  invasion,  insurrection,  or  rebellion,  &c.,  the  peaceable 


23 

course  of  justice  is  stopped,  so  as  the  courts  of  justice  be  as  it  were. 
shut  up,  then  it  is  said  to  be  time  of  war."  Ghke  upon  Littleton, 
249,  b.  n.  1. 

In  further  commenting  upon  the  great  chapter  of  Magna 
Charta,  ah*ca«ly  quoted,  Lord  Coke  says : 

"  *By  the  judgment  of  his  peers'  are  to  be  understood  of  the 
King's  suit" — in  other  words,  of  a  State  prosecution.  "And  it 
extendeth  to  the  King's  suit  in  case  of  treason  or  felony,  or 
misprision  of  treason  or  felony,  or  being  accessor}'  to  a  felony 
before  or  after,  and  not  to  any  other  inferior  off'ense.  Also,  it 
extendeth  to  the  trial  where  he  is  to  be  convicted."     2  Inst.,  49. 

And  upon  the  word,  ^^  legale,''  he  says  : 

"By  the  word  legale,  amongst  others,  three  things  are  im- 
plied; 1st.  That  the  manner  of  trial  was  by  law  before  this 
statute;  2d.  That  their  verdict  must  be  legally  given,  wherein 
principally  it  is  tq  be  observed;  1st.  That  the  lords  ought 
to  hear  no  evidence  but  in  the  presence  and  hearing  of  the 
prisoner ;  2d.  After  the  lords  have  gone  together  to  consider 
of  the  evidence,  they  can  not  send  to  the  High  Steward  to 
ask  the  judges  any  question  of  law,  but  in  the  hearing  of  the 
prisoner,"  &c.;  3d.  "  When  all  the  evidence  is  given,"  &c.,  "the 
High  Steward  can  not  collect  the  evidence  against  the  prisoner, 
or  in  any  sort  confer  wMth  the  lords,  touching  their  evidence,  in 
the  absence  of  the  prisoner,"  &c.     2  Inst.,  49. 

And  again,  upon  the  word,  "by  the  law  of  the  land,"  while, 
perhaps,  going  to  the  extent  of  permitting  a  party  suspected  of 
treason  to  be  arrested  without  writ,  upon  suspicion  and  com- 
mon fame,  he  totally  excludes  the  notion  of  his  continued  impris- 
onment without  some  warrant;  and  leaves  out  of  the  question 
all  other  forms  of  trial,  but  that  by  the  legal  judgment  of  hia 
peers.     Id.  pp.  50,  55. 

After  the  close  of  the  long  and  glorious  reign  of  Edward  the 
Third,  his  unworthy  grandson,  Richard  the  Second,  came  to  the 
throne,  which  he  finally  lost,  by  attempting  to  return  to  such 
precedents  as  those  just  cited  of  his  great  grandfather.  Ilis  ef- 
forts to  get  rid  of  Magna  Charta  and  the  Common  Law,  and  to 
substitute  the  Roman  Civil  Law  for  them,  may  be  learned  from 
the  records  of  his  reign.  An  outline  sufficient  for  our  purpose 
will  be  found  in  Sullivan's  Lectures  on  the  Laws  and  Constitution 
of  England.  (See,  vol.  1,  p.  318,  et  seq.;  and  vol.  2,  257.)  In 
the  former  place  will  be  seen  what  great  efforts  he  made  to  in- 
troduce the  Civil  Law,  and  in  the  latter,  that  this  law  became 
the  law  of  the  Marshal's  Court; — no  doubt  on  account  of  the 
fondness  of  the  kings  therefor, — and  also,  that  the  jurisdiction 
of  that  court  embraced  the  administration  of  martial  law  over 
soldiers  and  camp  followers. 

In  subsequent  reigns,  the  kings  of  England  struggled  almost 
constantly  to  extend  this  jurisdiction  to  others  than  soldiers ; 


24  J.  w.  Gordon's  argument. 

but  it  was  a  struggle  against  the  free  spirit  of  the  nation.  In 
the  reign  of  Henry  the  Eighth,  an  instrument  was  placed  in 
the  hands  of  that  monarch,  by  the  parliament,  which  seemed  to 
go  far  toward  making  the  king  absolute;  and  which  was  subse- 
quently used  by  him  and  his  successors  in  such  a  way  as  almost 
to  insure  that  end.  This  was  done  by  the  passage  of  a  statute 
"w^hich,"  as  Lord  Coke  observes,  "gives  more  power  to  the 
king  than  he  had  before;"  and  yet  even  there  it  is  declared  that 
he  can  not  '* alter  the  law,  statutes  or  customs  of  the  realm,  or 
impeach  any  in  his  inheritance,  goods,  body,  life,  &c."  The 
father  of  that  King  had  gone  so  far,  prior  to  this  act,  as  to  claim 
the  right  to  control  the  subject's  right  of  doing  all  things  not 
unlaw'tul ;  (Hal lam's  Constitutional  History,  p.  15;)  and  his 
daughter,  Queen.  Elizabeth,  carried  the  power  under  this  act  to 
euch  an  extent  as  to  set  all  law  at  defiance.  ''One  Peter  Burch- 
ill,  a  fanatical  Puritan,  and,  perhaps,  insane,  conceiving  that 
Sir  Christopher  Hatton  was  an  enemy  to  the  true  religion,  de- 
termined to  assassinate  him ;  but  by  mistake,  he  wounded  instead 
a  famous  seaman.  Captain  Hawkins.  For  this  ordinary  crime, 
the  Queen  could  hardly  be  prevented  from  directing  him  to  be 
tried  instantly  by  martial  law.  Her  council,  however,  (and  this 
it  is  important  to  observe,)  resisted  this  illegal  proposition  with 
spirit  and  success."  (Hallam  Cons.  His.,  143.)  "The  Queen  had 
been  told,  it  seems,  of  what  had  been  done  in  Wyatt's  busi- 
ness— a  case  not  at  all  parallel;  though  there  was  no  sufficient 
necessity,  even  in  that  instance,  to  justify  the  proceeding  by 
martial  law.  But  bad  precedents  always  beget  progeniiim  vitiosi- 
orem."  (Id.,  in  note.)  But  the  same  learned  authority  gives 
the  following  instances  of  the  exercise  by  Queen  Elizabeth,  of  a 
power  almost  absolute,  through  proclamations.     I  quote : 

"We  have,  indeed,  a  proclamation  some  years  afterward,  de- 
claring that  such  as  brought  into  the  kingdom,  dispersed  papal 
bulls,  or  traitorous  libels  against  the  queen,  should  with  all  se- 
verity, be  proceeded  against  by  her  majesty's  lieutenants,  or 
their  deputies,  by  martial  law,  and  suffer  such  pains  and  penal- 
ties as  they  should  inflict;  and  that  none  of  her  said  lieuten- 
ants, or  their  deputies,  be  in  any  wise  impeached  in  body,  lands, 
or  goods,  at  any  time  hereafter,  for  anything  to  be  done  or  exe- 
cuted in  the  punishment  of  any  such  offender,  according  to  the 
said  martial  laiv,  and  the  tenor  of  this  proclamation,  any  law, 
or  statute  to  the  contrary,  notwithstanding."  This,  Mr.  Hallam 
regards  as  "by  no  means  constitutional ;"  but  apologises  for  it, 
because  it  was  done  "when,  within  a  few  days,  the  vast  arma- 
ment of  Spain" — known  in  history  as  the  Spanish  Armada — 
"might  effect  a  landing  on  the  coast."  "But,"  he  remarks  fur- 
ther, "it  is  an  unhappy  consequence  of  all  deviations  from  the 
even  course  of  law,  that  the  forced  acts  of  overruling'  necessity, 


J.  w.  Gordon's  argument.  25 

come  to  be  distorted  into  precedents,  to  serve  the  purposes  of 
arbitrary  power."     Id.^  143  ;  4  Hume's  His.  Eng.,  p.  344. 

I  quote  the  same  author  for  the  following  instance  of  a  still 
greater  stretch  of  this  arbitrary  and  unconstitutional  power, 
which  occurred  during  the  same  reign  : 

"ITo  measure  of  Elizabeth's  reign  can  be  compared,  in  point 
of  illegality,  to  a  commission  in  July,  1595,  directed  to  Sir 
Thomas  Wilford,  whereby,  upon  no  other  allegation  than  that 
there  had  been  of  late  sundry  great  unlawful  assemblies  of  a 
riotous  sort,  both  in  the  city  of  London  and  the  suburbs,  for  the 
suppression  whereof  (for  the  insolency  of  many  desperate  offen- 
ders, is  such  that  they  care  not  for  any  ordinary  ^punishment,)  it 
was  found  necessary  to  have  some  such  notable  rebellious  per- 
sons to  be  speedil}^  suppressed  by  execution  to  death,  according 
to  the  justice  of  martial  laio ;  he  is  appointed  provost  marshal, 
with  authority  by  the  magistrates,  to  attack  and  seize  such  no- 
table, rebellious  and  incorrigible  offenders,  and  in  the  presence 
of  the  magistrate  to  execute  them  openly,  on  the  gallows." 

"Thi?  peremptory  style  of  suspending  the  Common  Law 
was  a  stretch  of  prerogative  without  an  adequate  parallel,  so 
far  as  I  know,  in  any  former  period."  Id.^  143,  144  ;  4  Hume's 
His.  Eng.  p.  344. 

It  must  be  remembered  that  these  high-handed  measures  took 
place  in  the  sixteenth  century,  a  period  when  both  religious  and 
political  revolutions  were  rife  in  Europe ;  that  the  life  of  Eliza- 
beth, was  more  than  once  the  object  of  conspiracies,  both  for- 
eign and  domestic  ;  that  the  ablest  men  in  Europe  were  parties 
to  and  prompters  in  these  perfidious  and  bloody  schemes;  (Mot- 
ley's Dutch  Republic,  vol.  2,  part  3, p.  333;  and  D'Israeli's  Curios- 
ities of  Literature,  1st  ser.,  p.  166 ;)  that  the  very  persons  at  whom 
these  proclamations  were  aimed,  had,  in  the  preceding  reign  of 
her  sister,  employed  the  same  agencies  for  the  overthrow  of  her 
religion  in  the  kingdom,  and  the  destruction  of  her  friends; 
that  the  constable's  and  marshal's  court,  "whose  jurisdiction 
was  considered  as  of  a  military  nature,"  and  whose  proceedings 
were  not  according  to  the  course  of  the  common  law,  had 
"sometimes  tried  offenders" — not  soldiers — by  what  was  called 
martial  law,  "either  during  or  not  long  after  a  serious  rebellion;" 
and,  above  all,  that,  at  the  time  of  the  last-mentioned  proclama- 
tion, the  queen  was  a  very  old  woman,  and,  it  may  be,  some- 
what subject  to  fits  of  ill  temper.  All  these  things  must  be 
reckoned  in  her  favor,  to  mitigate  the  judgment  of  history 
against  these  arbitrary  measures ;  but  still  can  not  save  the 
acts  themselves  from  the  indignant  condemnation  of  mankind. 
Accordingly  we  find  Lord  Coke,  in  the  next  reign,  condemn- 
ing utterly  the  doctrine  that  the  king's  proclamation  can  either 


26  J.   W.    GORDON*S    ARGUMENT. 

alter,  repeal,  or  suspend  the  law,  or  make  that  criminal,  which 
before  was  not.     He  says : 

"The  King  can  not  create  any  offence  by  his  prohibition  or 
proclamation,  which  was  not  an  offence  before ;  for  that  was  to 
change  the  law,  and  to  make  an  offence  which  was  not ;  for  ubi 
non  est  leXy  ibi  non  est  transgressio :  therefore  that  which  can  not 
be  punished  without  proclamation,  can  not  be  punished  with 
it."  "But,"  he  further  remarks,  "we  do  find  divers  precedents 
of  proclamations  which  are  utterly  against  law  and  reason,  and 
for  that  void;  quoB  contra  rationem  juris  introduda  sunt,  non  de- 
bent  trahi  in  consequentiam*' — i.  e.,  measures  introduced  contrary 
to  the  reason  of  the  law,  ought  not  to  be  drawn  into  conse- 
quence, or  precedent.  Again,  he  says  that  it  had  been  held  that 
the  king,  by  his  proclamation  can  not  create  any  offence  which 
was  not  an  offence  before,  "for  then  he  may  alter  the  law  of  the 
land  by  his  proclamation,  in  a  high  point;  for,  if  he  may  create 
an  offence  where  none  is,  upon  that  ensues  fine  and  imprison- 
ment:  Also  the  law  of  England  is  divided  into  three  parts: — 
common  law,  statute  law,  and  custom;  but  the  King's  procla- 
mation is  none  of  them  :  also,  malum  aut  est  malum  in  se,  aut 
prohibitum,  that  which  is  against  common  law  is  malum,  in  se^ 
malum  prohibitum-  is  such  an  offence  as  is  prohibited  by  act  of 
Parliament,  and  not  by  proclamation."     12  Rep.,  pp.  74,  75,  76. 

Yet,  notwithstanding  the  law  was  thus  cogently  laid  down 
in  the  time  of  James  the  First,  we,  nevertheless,  find  Charles 
the  First,  in  the  first  year  of  his  reign,  endeavoring  to  return  to 
the  bad  and  unlawful  measures  of  his  predecessors.  He  ac- 
cordingly addressed  a  commission  to  Lord  Wimbleton,  28th 
December,  1625,  empowering  "him  to  proceed  against  soldiers, 
or  dissolute  persons  joining  with  them,  who  should  commit  any 
robberies,  &c.,  which  by  martial  law  ought  to  be  punished  with 
death,  by  such  summary  course  as  is  agreeable  to  martial  lawJ* 
He,  also,  issued  another  commission  of  the  same  kind,  in  1626. 
See,  Hallam's  Const.  His.,  p.  223,  and  note. 

These  unlawful  proclamations,  among  other  grievances,  sub- 
sequently moved  Parliament  to  demand  of  his  majesty  the 
justly  celebrated  Petition  of  Right,  which  forever  put  an  end  to 
all  colorable  pretences  of  their  legality.  Let  it  be  observed, 
too,  that  this  great  act  is  but  declaratory  of  the  common  law. 
Ko  measure  was  ever  supported  on  the  side  of  the  Parliament 
with  greater  force  of  talents  and  learning;  or  opposed  by  the 
king  with  worse  show  of  reason,  or  more  bare-faced  attempts 
to  deceive  the  public,  and  to  prevent  its  final  passage.  Among 
the  managers  of  the  Commons,  on  that  occasion,  may  be  reckon- 
ed the  great  names  of  Coke  and  Selden — two  names  that  may, 
perhaps,  be  equaled,  but  certainly  not  surpassed,  for  learning 
and  ability,  in  English  history.  Under  their  management  the 
measure  was  finally  perfected  and  passed ;  and  became  a  new 


J.  w.  Gordon's  argument.  27 

guaranty  of  Anglican  liberty.  I  shall  make  no  apology  for 
reading  here  such  parts  of  it  as  I  deem  pertinent  to  the  subject 
under  consideration.     They  are  as  follow  : 

''And  whereas,  also,  by  the  statute  called  the  Great  Charter 
of  the  Liberties  of  England,  it  is  declared  and  enacted,  that  no 
freeman  may  be  taken  or  imprisoned,  or  be  disseized  of  hia 
fceehold  or  liberties,  or  his  free  customs,  or  be  outlawed,  or  ex- 
ilod,  or  in  any  manner  destroyed  but  by  the  lawful  judgment 
or  his  peers,  or  by  the  law  of  the  land. 

''And  in  the  eight  and  twentieth  year  of  the  reign  of  King 
Edward  III,  it  was  declared  and  enacted  by  authority  of  Par- 
liament, that  no  man,  of  what  estate  or  condition  that  he  be, 
should  be  put  out  of  his  lands  or  tenements,  nor  taken,  nor  im- 
prisoned, nor  disherited,  nor  put  to  death,  without  being 
brought  to  answer  by  due  process  of  law\  *         ?!:         >}j 

"And  whereas,  also,  by  authority  of  Parliament  in  the  five 
and  twentieth  year  of  the  reign  of  King  Edward  III,  it  was  de- 
clared and  enacted,  that  no  man  should  be  forejudged  of  life  or 
limb  against  the  form  of  the  Great  Charter  and  the  law  of  the 
land ;  and  by  the  said  Great  Charter,  and  other,  the  laws  and 
statutes  of  this  your  realm,  no  man  ought  to  be  adjudged  to 
death  but  by  the  laws  established  in  this  your  realm,  either  by 
the  customs  of  the  same  realm,  or  by  acts  of  Parliament:  and 
whereas,  no  offender  of  what  kind  soever,  is  exempted  from  the 
proceedings  to  be  used,  and  punishments  to  be  inflicted  by  the 
laws  and  statutes  of  this  your  realm:  nevertheless,  of  late  time, 
divers  commissions  under  your  majesty's  great  seal  have  issued 
forth,  by  w^hich  certain  persons  have  been  assigned,  and  ap- 
pointed commissioners  with  power  and  authority  to  proceed 
within  the  land  according  to  the  justice  of  martial  law,  against 
such  soldiers,  or  mariners,  or  other  dissolute  persons  joining 
with  them,  as  should  commit  any  murder,  robbery,  felony,  mu- 
tiny, or  other  outrage  or  misdemeanor  whatsoever;  and  by  such 
summary  course  and  order  as  is  agreeable  to  martial  law,  and 
as  is  used  in  armies  in  time  of  war,  to  proceed  to  the  trial  and 
condemnation  of  such  offenders,  and  them  to  cause  to  be  exe- 
cuted and  put  to  death  according  to  the  law  martial. 

"By  pretext  whei-eof  some  of  your  majesty's  subjects  have 
been  by  some  of  said  commissioners  put  to  death,  when  and 
where,  if  by  the  laws  and  statutes  of  the  land  they  had  de- 
served death,  by  the  same  laws  and  statutes  also,  they  might, 
and  by  no  other  ought,  to  have  been  judged  and  executed. 

"They  do,  therefore,  humbly  pray  your  most  excellent  maj- 
jesty  *  *  *  *  ^  ^  :^  ^  that  the 
aforesaid  commissions  for  proceeding  by  martial  law,  may  be  re- 
voked and  annulled;  and  that  hereafter  no  commissions  of  the 
like  nature  may  issue  forth  to  any  person  or  persons  whatsoever 


28 

to  be  executed  as  aforesaid,  lest  by  colour  of  them  any  of  your 
majesty's  subjects  be  destroyed,  or  put  to  death  contrary  to  the 
laws  and  franchises  of  the  land." 

And  to  this  prayer  the  King  was  finally  compelled  to  answer, 
^  Soil  fait  comme  est  desire — be  it  as  it  i<  desired." — 2  Pari.  His., 
p.  374,  et  seq. ;  and  Creasy  on  the  Eng.  Const.,  pp.  260-264. 

But  this  act  was  no  sooner  passed  than  the  perfidious  King 
set  about  violating  its  provisions;  whereby  he  finall}' drove  his 
Parliament  and  people  into  open  rebellion  against  him.  In  the 
contest  which  ensued  they  beat  him,  took  him,  and  beheaded 
him,  by  the  judgment  of  a  tribunal  not  better  in  point  of  con- 
stitutionality, than  those  by  which  he  had  doomed  man}^  of  his 
subjects  to  death.  The  engineer  was  thus  literally  "hoist  with 
his  own  petar."  "The  curse,"  which  he  had  more  than  once 
sent  abroad  over  his  kingdom,  thus  at  last,  "came  home  to 
roost." 

It  is  unnecessary  for  our  purpose  to  notice  in  detail  the  meas- 
ures of  the  next  two  reigns.  Let  it  sufiice  for  the  present 
to  say  that  in  the  31  Car.  2,  the  justly  celebrated  habeas  corpus 
act  was  passed  ;  and  the  personal  liberty  of  the  subject  thereby 
more  effectually  guaranteed  than  ever  before;  and  that  for  at- 
tempting to  procure  its  repeal,  dispense  with  acts  of  Parliament 
by  commission  or  otherwise,  and  other  similar  illegal  measures, 
his  brother,  James  the  Second,  was  obliged  to  abdicate,  and  fly 
the  kingdom,  and  "William  and  Mary  were  called  to  the  throne. 
1  Macaulay's  His.  Eng.,  186 ;  2  Id,,  3 ;  Id.,  62,  64. 

Upon  the  accession  of  William  and  Mary  the  great  principles 
of  Anglican  liberty  w^ere  again  distinctly  asserted  in  the  Bill  of 
Rights ;  and  all  the  guarantees  thereof  reafiirmed.  (Creasy  on 
the  English  Constitution,  p.  284,  et  seq.)  Since  that  event  there 
has  been  no  trial  of  any  citizen  by  martial  law  in  Great  Britain. 
The  writ  of  habeas  corpus  has  been  suspended  often ;  and  in  two 
instances,  arising  from  both  rebellion  and  invasion,  martial  law 
has  been  proclaimed  ;  but  it  has  never  been  carried  further  than 
to  the  arrest  and  imprisonment  of  suspected  persons,  until  trial 
by  the  ordinary  tribunals  could  be  had.  One  would  think,  too, 
from  a  perusal  of  the  State  Trials  which  followed  these  inva- 
sions and  rebellions,  that  the  punishments  inflicted  were  both 
certain  and  sanguinary  enough  to  satisfy  all  the  ends  of  State 
Justice.  It  will  be  understood,  of  course,  that  I  speak  of  the 
invasions  of  the  Pretender  in  1715,  and  again  in  1745.  But 
that  I  am  not  mistaken  in  regard  to  the  fact,  that  martial  law 
was  not  in  either  instance  enforced  to  the  trial  and  punishment 
of  any  citizen,  and  has  not  been  in  any  other  instance  since  or 
before,  subsequent  to  the  abdication  of  James  the  Second,  I  beg 
leave  to  show  by  reference  to  the  case  of  Grant  v.  Gould,  2  Hy. 
Bl.  Rep.  89;  and  the  following  passage  from  DeLolme's  excel- 
lent treatise  on  the  Constitution  : 


J.  w.  Gordon's  argument.  29 

"At  the  time  of  the  invasions  of  the  Pretender,  assisted  by 
the  forces  of  hostile  nations,  the  habeas  corpus  act  was,  indeed, 
suspended;  (which,  by  the  by,  may  serve  as  one  proof,  that  in 
proportion  as  a  government  is  in  danger,  it  becomes  necessary 
to  abridge  the  liberty  of  the  subject;)  hnt  the  Executive  power 
did  not  thus  of  itself  stretch  its  own  authority.  The  precaution 
was  deliberated  upon  and  taken  by  the  representatives  of  the 
people;  and  the  detaining  of  individuals  in  consequence  of  the 
suspension  of  the  act,  was  limited  to  a  certain  fixed  time.  Not- 
withstanding the  just  fears  of  internal  and  hidden  enemies, 
which  the  circumstances  of  the  times  miglit  raise,  the  deviation 
from  the  former  course  of  law  was  carried  no  further  than  the 
single  point  we  have  mentioned.  Persons  detained  by  order  of 
the  government  were  to  be  dealt  with  in  the  same  manner  aa 
those  arrested  at  the  suit  of  private  individuals,  the  proceed- 
ings against  them  were  to  be  carried  on  no  otherwise  tban  in 
a  public  place ;  they  were  to  be  tried  by  their  peers ;  and  have 
all  the  usual  legal  means  of  defence  allowed  them — such  as  the 
calling  of  witnesses,  peremptory  challenges  of  jurors,  &c." — 
DeLolme  on  the  Const.,  by  Macgregor,  p.  274. 

It  has  been  supposed  by  many  that  martial  law  was  pro- 
claimed in  England  in  1780,  during  the  great  Protestant  riot, 
headed  in  its  incipiency  by  the  celebrated  Lord  George  Gordon. 
It  is  a  mistake  however,  due,  perhaps,  to  the  discussions  in 
Parliament  soon  after  that  event,  in  relation  to  the  King's 
ordering  the  military  to  suppress  the  riot,  and  which  was  done 
by  direct  military  force.  It  was  supposed  then, 'by  many  mem- 
bers of  Parliament,  that  this  could  not  be  done  without  a  decla- 
ration of  martial  law;  and  in  that  view  the  proceeding  was  con- 
demned by  them,  and  especially  by  those  in  the  opposition. 
Two  speeches,  however,  in  the  House  of  Lords  may  be  regard- 
ed as  triumphantly  maintaining  the  contrary  opinion.  I  allude 
to  the  speeches  of  Lord  Chief-Justice  Mansfield  and  Lord 
Chancellor  Thurlow.  In  order  that  the  Commission  may  see  the 
ground  on  which  the  action  of  the  military  was  placed  by  these 
great  men,  and  by  Parliament, — for  that  body  adopted  their 
views, — I  shall  submit  a  brief  quotation  from  that  of  the 
former,  which  has  ever  since  been  regarded  by  the  English  bar 
as  an  authority.     It  is  as  follows: 

**I  presume  it  is  known  to  his  majesty's  confidential  servants, 
that  every  individual  in  his  private  capacity,  may  lawfully  inter- 
fere to  suppress  a  riot,  much  more  to  prevent  acts  of  felony, 
treason,  and  rebellion.  Js'ot  only  is  he  authorized  to  interfere 
for  such  purpose ;  but  it  is  his  duty  to  do  so ;  and,  if  called  up- 
on b}'  a  magistrate,  he  is  punishable  in  case  of  refusal.  What 
any  single  individual  may  lawfully  do  for  the  prevention  of 
crime,  and  preservation  of  public  peace,  may  be  done  by  any 
number  assembled  to  perform  their  duty  as  good  citizens.  It  is  the 


30  J.  w.  Gordon's  argument. 

peculiar  business  of  all  constables  to  apprehend  rioters,  to  endeav- 
or to  disperse  all  unlawful  assemblies,  and,  in  case  of  resistance, 
to  attack,  wound,  nay,  kill  those  who  continue  to  resist;  taking 
care  not  to  commit  unnecessary  violence,  or  to  abuse  the  power 
legally  vested  in  them.  Every  one  is  justified  in  doing  what  is 
iiecessary  for  the  faithful  discharge  of  the  duties  annexed  to  his 
office,  although  he  is  doubly  culpable  if  he  wantonly  commits 
an  illegal  act,  under  the  color  or  pretext  of  law.  The  persons 
who  assisted  in  the  suppression  of  these  tumults,  are  to  be  con- 
sidered mere  private  individuals,  acting  as  duty  required. 

"My  Lords,  we  have  not  been  living  under  martial  lav),  but 
under  that  law  which  it  has  long  been  my  sacred  function  to 
administer.  For  any  violation  of  that  law,  the  offenders  are 
amenable  to  our  ordinary  courts  of  justice,  and  may  be  tried 
before  a  jury  of  their  countrymen. 

"  Supposing  a  soldier,  or  any  other  military  person,  who  acted 
in  the  course  of  the  late  riots,  had  exeeded  the  powers  with 
which  he  was  invested,  I  have  not  a  single  doubt  that  he  may 
be  punished,  not  by  a  court-martial,  but  upon  an  indi(;tment  to 
be  found  by  the  grand  inquest  of  the  city  of  London,  or  the 
county  of  Middlesex,  and  disposed  of  before  the  ermined  Judges 
sitting  in  Justice  Hall,  at  the  Old  Bailey.  Consequently,  the  idea 
is  false  that  we  are  living  under  a  military  government,  or  that  since 
the  commencement  of  the  riots  any  'part  of  the  laws,  or  of  the  Con- 
stitution, has  been  suspended,  or  dispensed  with.  I  believe  that  much 
mischief  has  arisen  from  a  misconception  of  theliiot  Act,  which 
enacts  that,  aft6r  proclamation  made,  persons  present  at  a  riotous 
assembly  shall  depart  to  their  homes,  and  that  those  who  remain 
there  above  an  hour  afterwards,  shall  be  guilty  of  felony,  and 
liable  to  suffer  death.  From  this  it  has  been  imagined  that  the 
military  can  not  act,  whatever  crimes  may  be  committed  in 
their  sight,  till  an  hour  after  such  a  proclamation  has  been  made, 
or  as  it  is  termed,  'the  Riot  Act  is  read.'  But  the  riot  act  only 
introduces  a  new  offence — remaining  an  hour  after  the  procla- 
mation— without  qualifyiijg  any  pre-existing  law,  or  abridging 
the  means  vrhich  before  existed  for  preventing  or  punishing 
crimes."     2  Campbell's  Lives  of  the  Chief  Justices,  pp.  401, 402. 

The  same  can  not  be  said,  however,  of  the  dependencies  of 
the  British  crown.  Indeed,  Ireland,  the  Indias,  and  other  prov- 
inces have  been  frequently  subjected  to  the  rigors  of  martial  laic 
— the  will  of  the  king's  lieutenants,  or  of  the  commanding 
general.  But  then,  it  must  be  remembered  that  martial  law  has 
not  been  the  only  hardship  or  outrage  inflicted  upon  them. 
Any  one  who  will  but  read  the  trial  of  Warren  Hastings,  must 
be  satisfied,  notwithstanding  his  acquittal,  that  in  her  colonies 
and  dependencies.  Great  Britain  inflicts,  permits,  or  can  not  pre- 
vent great  crimes  against  the  people.  Who  does  not  remember 
to  have  read  of  the  terrible  punishments  inflicted  during  the 


J.  w.  Gordon's  argument.  31 

Sepoy  rebellion?  A  man  of  sensibility  can  see  "in  the  mind^s 
eye,"  the  quivering  fragments  of  the  victims  of  martial  laio  fly- 
ing through  the  air,  as  they  are  blown  from  the  mouths  of  can- 
non ;  and  yet  even  the  holy  horror  which  our  English  cousini 
manifest  at  our  cruelty  in  the  present  war,  has  not  won  our 
favor  for  their  mild  and  christian  warfare  as  practiced  in  India. 
May  we  never  be  won  to  approve  or  practice  such  lessons  of 
humanity!  They  really  seem  to  regard  their  provinces  as  sub- 
ject to  the  absolute  wnll  of  the  domestic  government,  very  much 
as  our  law  books  treat  our  territories.  The  constitution  and 
laws  do  not  exist  for  them.  It  was  to  rid  themselves  of  such  a 
relation,  and  from  the  oppressions  incident  to  it,  that  the  people 
of  America  rebelled  against  the  parent  country ;  and,  after  eight 
years  of  war,  established  their  independence  and  freedom. 

But  before  I  quit  this  subject,  I  beg  leave  to  notice  two  cases 
occurring  in  remote  possessions'of  Great  Britain ;  and  wdiich  have 
become  marked  in  history,  from  the  fact  that  they  were  brought 
within  the  reach,  and  subjected  to  the  public  opinion  and  laws  of 
that  island. 

The  iirst  of  these,  is  the  case  of  Col.  Wall,  Governor  of  Go- 
ree.  It  seems  that  this  officer,  upon  some  apprehension  of 
mutiny  in  the  forces  at  his  post — an  apprehension  which  may 
or  may  not  have  been  well  founded,  so  far  as  I  have  been  able 
to  learn  from  the  very  meager  report  of  the  evidence  found  in 
the  Annual  Register  for  1802,  pp.  560,  convened  a  drum-head 
court-martial  one  evening  upon  dress  parade,  and  ordered  a 
sergeant  before  it  for  immediate  trial.  The  court  adjudged  him 
guilty  and  sentenced  him  to  receive  eight  hundred  lashes,  which 
were  thereupon  inflicted  on  the  spot,  by  the  servants  of  the  Go- 
vernor, who  stood  by  and  urged  them  to  lay  on,  employing  lan- 
guage indicative  of  great  passion.  The  sergeant  died  of  the  flog- 
ging. The  Governor  returned  to  England,  where,  after  some  two 
or  three  years  had  elapsed,  he  was  arrested  on  a  charge  of  murder. 
He  escaped,  and  remained  absent  for  seventeen  or  eighteen  years, 
when  he  returned  to  England,  was  re-arrested,  indicted,  tried 
at  the  Old  Bailey,  convicted  and  hung  for  murder,  in  1802.  This 
case  strongly  marks  the  light  in  which  martial  law  is  regarded 
when  enforced  against  Englishmen ;  and  the  writer  of  the  re- 
report  of  the  trial,  in  the  Register,  employs  the  whole  case  as  an 
illustration,  on  the  one  hand,  of  the  harshness  of  martial  law;  and, 
on  the  other,  of  the  impartial  justice  of  English  courts  and 
juries. 

The  second  case  is  that  of  missionary  Smith,  in  Demarara.  He 
was  a  missionary  to  the  negroes  of  that  colony.  Among  these, 
in  1823  or  1824,  an  insurrection  broke  out;  martial  laio  was 
proclaimed;  and  the  rebellion  almost  immediately  suppress- 
ed.    Having  already  incurred  the  ill-will  of  the  planters,  as  the 


32  J.  w.  Gordon's  argument. 

reward  of  his  kindness  to  their  slaves,  he  was  arrested  on  a 
charge  of  having  had  knowledge  of  the  insurrection  before  the 
fact,  and  failing  to  communicate  it  to  the  authorities  ;  and  was 
brought  to  trial  upon  this  charge  before  a  court-martial,  and 
convicted  and  sentenced  to  be  hung.  Before  the  time  for 
his  execution  arrived,  however,  he  had  died  of  consumption. 
This  fact  alone,  it  would  seem,  from  what  subsequently  tran- 
spired in  Parliament,  saved  the  parties  to  this  trial — the  Govern- 
or and  members  of  the  court  from  being  proceeded  against  crim- 
inally. Sir  James  Mackintosh,  in  a  speech  of  great  power,  deliv- 
ered before  the  House  of  Commons  in  regard  to  this  case,  said 
that  "the  acts  of  this  court  were  nullities,  and  their  meeting  a 
conspiracy;  that  their  sentence  was  a  direction  to  commit  a 
crime;  that,  if  they  had  been  obeyed,  it  would  not  have  been 
an  execution,  but  a  murder  ;  and  that  they,  and  all  other  parties 
engaged  in  it,  must  have  answered  for  it  with  their  lives." 
Miscellaneous  Essays,  &c.,  p.  542.  Lord  Brougham,  in  a  mas- 
terly speech  delivered  on  the  same  occasion,  maintained  and 
demonstrated  the  nullity  of  the  sentence,  and  the  criminality  of 
the  court.  1  Speeches,  p.  390-391.  Out  of  Parliament,  the  Ed- 
inburgh Review  took  up  the  case,  in  an  unanswerable  and  scath- 
ing article  of  more  than  forty  pages,  and  condemned  the  whole 
proceeding  to  everlasting  infamy.     40  Vol.,  p.  226,  (Old  Series). 

I  have  been  able  to  find  but  tw^o  instances  in  which  the  British 
Government  declared  martial  law  in  this  country,  during  the 
revolutionary  war.  The  first  of  these  occurred  at  Boston,  Mas- 
sachusetts, June  12, 1775,  at  which  time  General  Gage  issued 
his  proclamation  of  martial  law,  resting  it  expressly  upon  the 
ground  that,  owing  to  the  rebellion  of  the  people,  the  ordi- 
nary courts  of  justice  were  closed,  and  the  course  of  justice 
therein  stopped ;  and  the  consequent  necessity  of  proclaiming 
martial  law  as  a  substitute  for  the  common  law.  Let  it  be  re- 
membered, that  this  was  nearly  two  months  after  the  battles  of 
Concord  and  Lexington,  and  but  five  days  before  that  of  Bunker 
Hill,  and  that  Boston  was,  at  the  time,  almost  in  a  state  of 
siege,  and  Jit  will  scarcely  be  thought,  by  anj^  one  living  in  our 
country  to-day,  that  this  procedure  was  premature.  J^everthe- 
less,  in  the  opinion  of  Americans  of  that  day,  it  was  an  out- 
rage w^ell  worthy  to  crown  all  the  rest  for  which  they  were  then 
everywhere  rushing  to  arms.  It  was  spoken  of  in  the  old  Con- 
gress as  an  attempt  "to  supercede  the  course  of  the  common 
law,  and  instead  thereof,  to  publish  and  order  the  use  of  mar- 
tial law."  Journal  of  the  Old  Congress,  147;  Ann.  Keg.  1775, 
p.  261. 

Governor  Dunmore  adopted  a  similar  measure  in  Virginia, 
November  7th,  1775,  which  the  Virginia  Assembly  met  and  de- 
nounced as  "an  assumed  power  which  the  King  himself  can 
not  exercise;  because  it  annuls  the  law  of  the  land,  and  intro- 


83 

duces  the  most  execrable  of  all  systems — martial  law.'*     4  Am. 
Archives,  87;  Ann.  Keg.,  1775.,  p.  28. 

Sometime  after  the  close  of  the  war  of  Independence,  and 
about  the  time  of  the  adoption  of  our  present  constitution,  I  be- 
lieve in  the  year  1787,  a  rebellion  occurred  in  the  State  of  Massa- 
chusetts. It  is  known  in  history  as  Shay's  rebellion.  When  it 
became  too  strong"  for  the  civil  arm  of  the  State  government,  and 
the  militia  were  finally  called  out,  it  was  not  to  supercede  the 
civil  authority,  but  was  strictly  employed  in  aid  thereof.  The 
writ  of  habeas  corpus  was,  indeed,  suspended  for  a  brief  period; 
but  no  martial  law  was  proclaimed  or  enforced  against  the  insur- 
gents. On  the  contrary.  Governor  Bowdoin  directed  General 
Lincoln  to  "consider  himself  in  all  his  military  offensive  opera- 
tions, constantly  as  under  the  direction  of  the  civil  ofiicer,  sav- 
ing when  any  armed  force  shall  appear  and  oppose  his  marching 
to  execute  these  orders."  In  this  way,  the  rebellion,  though 
formidable  both  for  its  numbers,  and  the  extensive  sympathy  it 
received  among  the  people  of  the  State  who  did  not  yet  openly 
engage  in  it,  was  put  down  almost  without  bloodshed ;  and  peace, 
order  and  good  feeling  were  restored. 

I  am  now  brought  to  the  era  of  the  Federal  Constitution;  and 
we  can  form  some  notion  of  what  was,  most  likely,  the  opinions 
and  sentiments  of  its  authors  in  relation  to  martial  law,  as  an 
incident  of  the  Government  they  were  about  to  establish  for 
themselves.  They  had  received  their  notions  of  law  from  a 
country  in  which  martial  laiD  had  not  been  exercised  for  more 
than  one  hundred  years;  they  had  suffered,  in  two  instances, 
during  the  late  war,  the  outrage  of  martial  law ;  and  had  repelled 
and  denounced  it  as  wholly  incompatible  with  the  limitations 
imposed  by  law  upon  the  King's  prerogative.  They  had  claimed* 
the  great  acts  of  English  liberty  as  their  rightful  inheritance. 
(4  Franklin's  Works,  274.)  They  had  asserted  their  independ- 
ence ;  because,  among  other  reasons,  the  King  "  had  affected  to 
render  the  military  independent  of,  and  superior  to,  the  civil 
power,"  which  was  simplj^  an  attempt  to  establish,  martial  law. 
And,  finally,  they  had  just  seen  a  formidable  domestic  rebellion, 
in  one  of  the  States,  go  down  before  the  local  authorities  there- 
of, without  a  declaration  o^  martial  law,  and  almost  without  the 
shedding  of  blood.  IsTow,  may  I  not  ask.  Is  there  a  single 
fact  in  all  the  experience  of  these  men,  that  could  possibl^^  have 
given  rise  to  a  wish  on  their  part  for  a  government  capable 
upon  every  occasion  offered  by  invasion  or  rebellion,  of  suspend- 
ing all  its  ordinary  functions,  and  calling  into  play,  "the  odious 
system  of  martial  law  .^  "  On  the  contrary,  we  are  led  to  conclude 
that  with  the  ordinary  feelings  of  men,  they  must  have  been 
utterly  and  intensely  hostile  to  any  such  power  in  their  govern- 
ment. This  would  be  our  conclusion,  if  they  had  left  us  no 
record  on  the  subject.     But  they  have  left  us  their  solemn  testi- 


34  J.  w.  Gordon's  argument. 

mony  in  the  constitution,  and  it  completely  sustains  the  conclu- 
sion to  which  we  are  led  by  reasoning  from  the  history  of  the 
past,  and  their  experience;  for,  if  ever  any  constitution  did  en- 
tirely shut  out  the  idea  of  any  power  being  vested  in  any 
department  of  the  government,  to  declare  martial  law,  it  is  that 
of  the  United  States  of  America.  From  its  very  nature,  no  less 
than  by  its  express  terms,  any  such  power  is  rendered  totally 
impossible,  while  a  vestige  of  the  constitution  remains.  Let  us 
examine  it,  and  see. 

In  the  first  place  it  is  a  government  created  by  a  written  con- 
stitution, which  limits  it  to  the  exercise  of  specified  powers. 
The  first  section  of  the  instrument  stamps  its  entire  character. 
Thus:  "All  legislative  power  herein  granted,  shall  be  vested," 
&c.  But  this  is  not  all.  After  granting  the  powers  intended  for 
the  government,  it  limits  them  by  express  denials  of  others, 
which  would  otherwise  have  been  embraced  in  those  granted. 
The  ninth  section  of  the  first  article,  is  thus  wholly  devoted  to 
these  denials  of  powers.  Among  these  negative  provisions  are 
some  utterly  incompatible  with  the  notion  that  the  framers  of 
the  constitution  could  have  entertained  the  thought,  even  for  a 
moment,  of  conferring  the  power  upon  any  department  of  the 
government,  to  declare  martial  laio  over  the  whole  United  States, 
or  any  part  of  it,  where  the  presence  of  embattled  hostile  ar- 
mies had  not  already  suspended  all  civil  authority.  Take  a  sin- 
gle instance  :  "  The  privilege  of  the  writ  of  habeas  corpus  shall 
not  he  suspended,  unless  w^hen,  in  cases  of  rebellion  or  invasion, 
the  public  safety  may  require  it."  Now,  we  have  already  seen 
that  martial  law  is  the  suspension  of  the  civil  law,  and  of  all  the 
functions  of  the  tivil  government — not  only  of  the  writ  of 
habeas  corpus,  but  of  all  other  process  and  laws  whatever.  Why 
should  the  constitution  limit  the  power  of  suspending  privi- 
leges to  the  writ  of  habeas  corpus  alone,  and  strictly  to  cases 
of  rebellion  and  invasion,  ''when  the  public  safety  may  require 
it,"  if  its  authors  had  understood,  or  intended  that,  in  every 
such  case,  all  other  provisions  of  the  constitution  and  laws, 
designed  to  protect  the  citizen  against  the  encroachments  of 
arbitrary  power,  might  be  suspended  at  pleasure,  by  the  Presi- 
dent, all  over  the  country  ;  or  by  any  General,  all  over  his  depart- 
ment? The  specific  limitation  of  this  power  of  suspension,  to 
this  one  w^it,  in  any  extreme  public  necessityt,  he  public  safety, 
*'in  cases  of  rebellion  or  invasion,"  forever  explodes  the  no- 
tion that  they  intended  to  confer,  in  such  cases,  the  power  to 
suspend  all  other  writs  and  rights  arising  under  the  constitu- 
tion and  laws  of  the  land.  The  expression  of  one  excludes  the 
rest. 

Let  us,  however,  briefly  consider  this  pretended  power  to  pro- 
claim martial  law  with  special  relation  to  a  government  like 
ours — a  government  with  a  written  and  limited   constitution. 


J.  w.  Gordon's  argument.  35 

Tho  power  in  question,  provided  it  exist,  must  reside  in  some 
one,  or  in  some  two,  or  in  all  three  of  the  departments  of  the 
government.     The  categories  are  exhaustive. 

It  will  not  he  pretended  that  it  resides  in  the  Judiciary  alone; 
nor,  indeed,  that  any  portion  of  it  is  vested  therein.  All 
writers  who  have  supported  the  power,  are  silent  as  to  any  por- 
tion of  it  residing  in  the  Judiciar3^  But  not  only  so,  the 
Supreme  Court  itself,  when  called  to  discuss  the  subject,  seem 
to  regard  it  as  vested  elsewhere  by  the  constitution,  provided  it 
exist  at  all.  This  is  as  it  should  be;  for  that  department  is,  by 
its  charter,  confined  to  the  exercise  of  judicial  functions;  and 
it  will  not  be  claimed  that  the  entire  suspension  of  such  func- 
tions, and  the  laws  upon  which  they  depend,  is  a  judicial  func- 
tion. Such  a  suspension  of  the  Judiciary  must  come  from 
without  that  department.  It  has  to  do  with  the  laws,  and  with 
rights  and  wrongs  under  them ;  and  as  long  as  a  case  is  pre- 
sented to  the  courts  under  existing  laws,  they  must  from  their 
nature  needs  act  upon  it.  But  this  constitutional  necessity  under 
which  the  Judiciary  is  placed,  is  directly  at  war  with  the  nature 
and  existence  of  martial  law,  which  puts  an  end,  for  the  time  being, 
to  the  courts.  In  other  words,  martial  laio  can  only  exist  when 
the  courts  have  ceased  to  exist.  As  long  as  they  remain  open, 
martial  law  remains  impossible;  Hence,  the  courts  can  not 
possess  any  power  to  declare,  or  aid  others  in  declaring  martial 
law.  The  power  in  question  must,  therefore,  reside  in  the  Leg- 
islative, or  Executive  departments  separately ;  or  in  both 
together,  provided  it  exist  at  all. 

Is  the  power  in  question  vested  in  (Congress  alone?  If  so, 
then  what  follows  upon  its  exercise?  Have  you  ever  thought 
of  that?  If  you  have  not,  let  me  show  you  what  must  be  the 
result.  It  is  this :  A  declaration  of  martial  law  would,  for  the 
time  being,  put  an  end  to  the  functions  of  Congress;  and  it 
would  do  so,  by  placing  an  absolutely  unlimited  power  in  the 
hands  of  the  President,  or  of  his  Generals.  Now,  if  Congress 
had  this  absolute  power  to  bestow,  does  not  all  history  tell  us 
that  once  gone  from  their  hands,  it  would  be  gone  forever? 
But  you  know  that  Congress  has  no  such  power  to  confer.  A 
single  limitation  upon  the  powers  of  Congress  gives  the  lie  to 
any  such  assumption  of  power  as  is  implied  in  a  proclamation  of 
martial  law.  And  yet  the  whole  charter  of  Congress  is  hedged 
in  by  limitations — nothing  but  limitations; — limitations  as  to 
the  subjects  of  their  jurisdiction; — limitations  as  to  their  mode 
of  proceeding  in  the  attainment  of  specified  objects  ; — and  limit- 
ations by  the  express  reservation  of  all  powers  not  granted  to 
the  Federal  Government,  to  the  people  or  the  States.  All  the 
powers  denied  to  Congress  in  the  Constitution,  leave  that  body 
so  much  less  power  than  is  necessary  to  a  proclamation  of  mar 
Hal  law.     All  the  powers  reserved  to  the  people  and  States  by 


B6    ■  J.  w.  Gordon's  argument. 

the  Constitution  is  a  further  limitation  of  the  power  requisite 
to  a  proclamation  of  martial  laio.  All  the  power  legitimately 
in  the  hands  of  the  Judiciary,  is  still  a  further  limitation  of  the 
power  requisite  to  enable  Congress  to  establish  martial  law. 
And  the  same  may  be  said  of  the  rightful  powers  of  the  Execu- 
tive. Hence,  it  is  plain  that  Congress  has  no  power  to  proclaim 
or  authorize  the  proclamation  of  martial  law,  which,  according 
to  the  definition  thereof,  given  by  all  writers  on  the  subject, 
makes  the  loill  of  the  Commander-in-Chief  the  su'i)reme  avd  only 
law  of  the  land;  or,  to  use  the  language  of  Mr.  Webster,  em- 
powers the  ''officer  clothed  with  it,  to  judge  of  the  degree  of 
force  that  the  necessity  of  the  case  may  demand;  and,"  he  adds, 
"there  is  no  limit  to  this,  except  such  as  is  to  be  found  in  the 
nature  and  character  of  the  exigency."  Webster's  Works,  6 
vol.,  pp.  240,  241. 

•  But  grant  for  the  argument,  that  Congress  has  this  power, 
what  would  be  the  inevitable  result  of  its  exercise?  AH  history 
tells  us  that  such  an  act  would  be  the  suicide  of  the  National 
Legislature.  All  liberty,  all  laws  designed  to  secure  liberty,  all 
free  institutions  would  perish  by  the  rash  act;  for  what  would 
laws,  liberties,  institutions,  or  life  itself  be  worth  when  all  were 
placed  at  the  will  of  an  absolute  master  ?  The  exigency  in  which 
such  powder  passed  from  the  representatives  of  the  people,  would 
be  readily  continued  by  him  on  whom  it  w^as  conferred.  The 
government  would  be  changed  by  the  act  from  the  freest  to  the 
most  simple  and  absolute  despotism  on  earth.  Congress,  there- 
fore, has  no  such  power  to  confer;  1.  Because  it  is  incompati- 
ble with  the  limitations  impcjed  upon  the  powers  of  that  body, 
both  by  denial  and  reservation.  2.  Because  it  would  be  a  power 
of  self  destruction ;  and  we  can  not  justly  hold  that  it  w^as  in- 
tended by  the  framers  of  the  Constitution,  that  any  Congress 
should,  in  its  discretion  in  a  given  emergency,  put  an  end,  not 
only  to  its  own  existence,  but  to  the  possible  existence  of  any 
future  Congress. 

If  the  power  in  question  belongs  to  the  President  alone,  then, 
in  times  of  invasion  or  rebellion — times  like  these — the  consti- 
tution of  the  country  affords  no  better  guaranty  for  the  secu- 
rity of  the  lives,  liberty  and  property  of  the  people,  than  his 
will.  And  is  that  the  end  of  the  labors  and  solicitude  of 
Washington  and  his  compatriots,  for  the  establishment  of  a 
free  people  upon  the  American  continent  ?  What  signifies  a 
limitation  on  the  power  of  the  Judiciary  and  on  that  of  Con- 
gress, if  the  President  has,  in  any  event,  an  unlimited  powder 
over  both,  and  all  else  in  the  land?  The  power,  then,  does  not 
belong  to  the  President  alone. 

The  same  result  is  attained,  if  the  power  to  proclaim  martial 
law  is  conceded  to  reside  in  the  Congress  and  President  jointly ; 
or,  indeed,  in  all  the  departments  of  the  Government  together ;  for 


J.  w,  Gordon's  argument.  37 

its  exercise  involves  the  transformation  of  the  entire  govern- 
ment from  one  limited  and  free,  at  least  in  form,  to  one  unlim- 
ited and  despotic  both  in  form  and  in  fact.  So  that,  in  any  view  we 
can  possibly  take  of  this  power,  it  can  not  exist  in  a  limited 
government  created  by  a  written  constitution.  It  is,  indeed,  an 
absurdity  too  fi^ross  to  be  admitted,  until  all  pretense  of  liberties 
and  rights  on  the  part  of  the  people  is  utterly  abandoned. 

But  let  us  now  glance  at  the  war  power  conferrred  by  the 
constitution  upon  the  government,  and  ascertain  where  it  is 
vested.  la  any  part  of  it  bestowed  upon  the  President  by  orig- 
inal constitutional  grant  ?  If  not,  upon  what  basis  are  we  to 
rest  the  stupendous  powers  claimed  for  him,  as  the  foundation 
of  your  jurisdiction?     Let  us  examine  and  see  how  he  stands. 

He  is,  I  grant,  appointed  Commander-in-Chief  by  the  consti- 
tution ;  but  where  is  his  command  ?  It  is  in  the  discretion  of 
Congress.  If  that  body  determine  to  hav3  no  army,  why^  then, 
the  President  can  have  none  to  command.  If  Congress  takes 
the  same  view  in  regard  to  a  navy,  the  President  again,  will  be 
in  precisely  the  same  situation  as  a  naval  officer.  Without  an 
act  of  Congress  he  can  not,  therefore,  raise  a  single  soldier,  or 
seaman,  or  build  a  ship,  or  fort,  or  do  any  other  military  act 
whatever.  If  Congress  do  not  raise  an  army  he  can  have  no 
military  power  to  repel  invasion,  or  suppress  insurrection.  But, 
if  Congress  authorize  him  to  raise  an  army  and  navy,  and  pro- 
vide him  with  the  means  necessary  to  the  end,  they  may  still  pro- 
vide just  such  rules  and  regulations  for  the  government  thereof 
as  they  please,  and  may  thus  leave  ^im  little  or  no  power  over 
either.  The  same  is  true  of  the  militia  of  the  several  States. 
They  are  to  be  organized,  armed  and  disciplined  according  to  the 
will  of  Congress ;  and  Congress  alone  has  power  to  provide  for 
callina^  them  forth  to  execute  the  laws  of  the  union,  suppress  in- 
surrection, and  repel  invasion.  The  Pressident  is  powerless  on 
all  these  subjects  until  Congress  invigorate  him.  The  very 
terms  which  designate  him  as  Commander-in-Chief  of  the  army 
and  nav3^  and  of  the  militia  of  the  several  states,  limit  his  pow- 
er over  the  last,  until  they  are  "called  into  the  actual  service  of 
the  United  States."  Is  it  not  preposterous,  then,  to  say  of  such 
an  officer — one  so  entirely  dependent  upon  Congress  for  every  el- 
ement of  military  power,  and  bound  to  accept  it  subject  to  just 
such  rules  and  regulations  as  they  impose,  that  he  is,  nevertheless, 
authorized  upon  a  given  emergency  "to  sweep  the  constitution 
and  laws  of  the  country  by  the  board,"  as  Mr:  Adams  expressed  it; 
to  annihilate,  for  the  time  being,  all  the  powers  and  functions  of 
Congress  and  the  Judiciary,  by  virtue  of  this  same  power,  thus 
dependent  upon  Congress;  and,  going  still  further,  to  create  a 
new  political  society  by  equalizing  all  the  people  of  the  several 
states,  by  abolishing  their  several  governments  and  institutions, 
and  consolidating  them  into  one  social  and  political  state,  subject 
4 


38 

to  one  law  only — his  own  mere  will ;  for  tins  is  martial  laze.  The 
power  contended  for  by  the  Judge- Advocate,  as  the  basis  of  your 
jurisdiction,  leads  to  this  monstrous  result;  and  some  of  the 
opinions  cited  in  support  of  it,  may  even  go  to  this  extent. 

It  is,  therefore,  plain  to  my  mind  that  the  several  departments 
of  the  government  do  not  possess  the  power  in  question,  either 
jointly  or  severally ;  for,  if  given,  it  would  be  a  power  to  sub- 
vert the  constitution  and  overthrow  the  government. 

But  the  nature  and  objects  of  the  political  society  over  which 
the  government  of  the  United  States  w^as  organized  to  preside, 
precludes  the  idea  that  any  such  power,  as  that  of  declaring  mar- 
tiallaw,  can  exist  therein  That  society  is  defined  and  limited 
in  its  objects  and  purposes  by  the  constitution ;  and,  in  fact,  has 
no  existence  beyond  the  terms  of  that  instrument.  The  rela- 
tions that  in  all  consolidated  nations  most  deeply  and  nearly 
interest  mankind,  and  most  strongly  bind  them  together,  are 
not  embraced  in  the  purposes  and  scope  of  the  federal  union 
at  all.  It  is  in  the  states  that  the  great  elements  and  relations 
of  political  society  are  principally  found.  The  government  of 
the  union  can  not,  therefore,  assert  the  power  in  question,  for 
two  reasons,  namely : 

1.  Because  the  people  of  the  several  states  of  the  union  have 
formed  no  society — no  community — beyond  that  which  results 
from  the  terms  of  the  constitution ; 

2.  Because  the  exercise  of  such  a  power  by  the  federal  gov- 
ernment would  destroy  the  several  distinct  societies  now^  repre- 
sented by  the  several  state  governments ;  and  to  such  destruc- 
tion neither  the  people  nor  the  governments  of  the  States  have 
ever  consented. 

But  from  such  destruction  of  the  states  follows  inevitably  the 
destruction  of  the  federal  government;  for  the  states  are  in 
many  and  essential  regards  constituents  of  that  government, 
which  can  not  exist  without  them. 

That  the  federal  government  is  thus  limited  by  its  constitu- 
tion, and  from  the  special  character  of  the  political  society 
upon  which  it  rests,  is  proven  by  its  whole  history.  It  can  not, 
like  a  government  of  general  powers,  with  no  limitations  upon 
them  which  it  may  not  by  its  own  legitimate  act  remove,  exer- 
cise any  power  not  conferred  upon  it  by  the  charter  of  its  crea- 
tion. If  its  officers  should  do  so,  their  acts  are  not  the  acts  of 
the  government ;  but  simply  the  acts  of  the  individuals  w^ho  do 
them ;  and  are  in  no  wise  binding  upon  the  people  who  have 
never  consented  to  them.  Whitaker  v.  English,  1  Bay's  Kep.,  15 ; 
Thayer  i\  Hedges  et  al,  22  Ind.  Kep.,  282 ;  Wilcox  v.  Griffin,  21 
Id.,  370 ;  and  Little  et  al.  v.  Barreme  et  ah,  2  Cranch's  Rep.,  p. 
170. 

In  this  respect  the  British  government  has  greatly  the  advan- 
tage over  ours ;  for  there  are  no  written  limitations  upon  its 


89 

powers,  which  Parliament — bein,^  omnipotent — may  not  ex- 
pand, or  remove  altogether.  A  declaration  of  martial  laiv  by  an 
act  of  Parliament ;  or  under  an  authority  granted  thereby ;  or 
with  the  assurance  that  an  act  of  indemnity  will  follow  it,  is  in 
no  wise  inconsistent  watli  the  British  constitution.  The  highest 
-written  element  in  that  constitution  does  not  rise  above  an  act 
of  Parliament.  Parliament  at  all  times  represents  the  entire 
sum  of  all  the  politico-social  capability,  or  possibility  of  the 
whole  country.  It  may,  therefore,  properly  take  any  step  it 
may  deem  necessary  for  the  conservation  of  the  society  over 
which  it  presides.  As  Parliament  itself  is  but  a  means  to  an 
end — the  preservation  and  well-being  of  that  society — it  may, 
in  a  great  emergency,  without  violating  any  fundamental  prin- 
ciple, surrender  its  own  existence.  And  yet,  a  declaration  of 
martial  law  is  said  to  be  unconstitutional  there,  by  a  high  legal 
and  military  functionary  of  that  country.  HouyKs  Precedents 
in  Military  Law,  p.  543. 

In  viev/  of  all  this,  it  seems  passing  strange  that  the  govern- 
ment of  the  United  States  should  ever  have  been  compared 
with  that  of  Great  Britain  in  relation  to  the  establishment  of 
this  transcendent  fact ;  and  still  more  strange  that  the  President 
should  have  been  set  up  as  the  equal  in  this  respect  of  the  king- 
— nay,  as  his  superior.  The  entire  proceedings  of  the  conven- 
tion that  framed  the  constitution,  go  to  discountenance  any^ 
such  position.  They  intended  to  create  an  executive  with  alto- 
gether less  authority  than  the  king  of  Great  Britain ;  and  they^ 
succeded  in  doing  so,  if  it  is  possible  to  impose  limitations  by 
means  of  a  written  constitution.  How  they  regarded  this  part 
of  their  work,  after  its  accomplishment,  may  be  learned  front 
the  Federalist.  (No.  69,  Hallowell's  ed.,  1831,  p.  347.)  It  is  not 
contended  that  the  king  can  rightfully  suspend  the  writ  habeas 
corpus;  but,  in  times  of  great  emergency,  he  is  permitted  to 
do  so  until  the  next  meeting  of  Parliament,  when  an  act  of  in- 
demnity must  be  passed  for  the  protection  of  those  who  were, 
in  anywise  engaged  in  such  suspension,  against  civil  prosecu- 
tions on  account  thereof.  Now,  this  act  of  indemnity  is  an  ad- 
mission of  the  original  illegality  of  the  previous  suspension ; 
for  it  is  passed  for  the  purpose  of  curing  it,  and  giving  it  the 
sanction  of  law.  But  Dr.  Francis  Lieber  maintains  that  there 
can  be  passed  no  valid  act  of  indemnity  by  a  government 
created  by,  and  acting  under,  a  written  constitution  like  ours;. 
and  this  opinion  he  cites  in  a  second  treatise  published  many 
years  after  his  work  on  "Legal  and  Political  Hermeneutics " 
was  given  to  the  public.  (Hermeneutics,  pp.  79,  80 ;  and  Civil 
Liberty  and  Self-Government,  vol.  1,  p.  134.)  If  argument  were 
wanting  to  support  this  authority,  it  arises  from  the  very  nature- 
of  our  constitution.  But  I  leave  it  to  stand  upon  the  authority 
of  a  great  name,  adorned  not  only  by  great  learning  devoted  to- 


40  J.  w. 

the  noblest  purposes  of  science ;  but,  also,  to  the  support  of  the 
cause  of  his  adopted  country  in  the  existing  struggle  for  the  in- 
tegrity of  its  territory  and  the  supremacy  of  its  constitution. 
And  yet,  I  know  there  are  not  wanting  men,  native  to  the. 
manor  born,  who  claim  that  the  President  has  the  power,  under 
the  constitution,  to  suspend  the  writ  of  habeas  corpus.  But  do 
they  forget  that  no  such  opinion  was  ever  expressed  by  any  one 
who  had  a  hand  in  framing  the  constitution,  or  who  lived  and 
acted  with  them.  Mr.  Jefterson  did  not  think  so.  (2  Jefferson's 
Corresp.,  p.  274,  291 ;  Id.,  344.)  On  the  contrary,  he  went  to 
Congress  and  asked  for  a  suspension  of  the  writ  at  the  time  of 
Burr's  conspiracy ;  and,  while  they  refused  to  suspend  it,  not 
a  member  of  that  body  was  found  to  question  the  fact  that  the 
power  to  pass  such  an  act,  under  proper  circumstances,  was 
vested  in  them.     3,  Benton's  Debates  in  Congress,  p.  504,  et  seq. 

About  the  same  time,  in  the  case  of  two  men  imprisoned  by 
order  of  the  President  for  complicity  in  that  conspiracy,  Chief- 
Justice  Marshall,  in  speaking  upon  the  writ  of  haheas  corpus, 
and  the  act  of  Congress  which  authorizes  judges  and  courts  of 
the  United  States  to  grant  it,  said : 

''  It  may  be  worthy  of  remark  that  this  act  was  passed  by  the 
first  Congress  of  the  United  States,  sitting  under  a  constitution 
which  had  declared  Hhat  the  privilege  of  the  writ  of  habeas 
fCorpus  should  not  be  suspended,  unless,  when  in  cases  of  rebellion 
or  invasion  the  public  safety  might  require  it.'  Acting  under 
the  immediate  influence  of  this  injunction,  they  must  have  felt 
with  peculiar  force  the  obligation  of  providing  efficient  means 
•by  which  this  great  constitutional  privilege  should  receive  life 
and  activity ;  for  if  the  means  be  not  in  existence,  the  privilege 
itself  would  be  lost,  although  no  law  for  its  suspension  should 
be  enacted.  Under  the  impression  of  this  obligation,  they  gave 
all  the  courts  the  power  of  awarding  writs  of  habeas  corpus. 

"If  at  any  time  the  public  safety  should  require  the  suspension 
•of  the  powers  vested  by  this  act  in  the  courts  of  the  United 
States,  it  is  for  the  Legislature  to  say  so.  That  question  depends 
on  political  considerations,  on  which  the  Legislature  is  to  decide. 
Until  the  legislative  will  be  expressed,  the  court  can  only  see  its  duty, 
und  must  obey  the  UimsJ^ — 4,  Cranch's  Reports,  pp.  75,  137. 

In  this  opinion  concur  all  respectable  authorities  that  I  have 
been  able  to  consult.  Among  them  are  Rawle,  Sedgewick, 
Story  and  the  late  Chief-Justice  Taney.  Rawle  on  the  Const., 
pp.  114,  115 ;  2  Story  on  the  Const.,  §  1342 ;  Sedgewick  on  the 
•Const,  and  Statue  Law,  p.  598 ;  and  9  Am.  Law  Reg.,  p.  524. 

But,  if  the  President  has  no  power  to  suspend  the  writ  of 
habeas  corpus,  and  Congress  no  power  to  indemnify  him,  and 
•those  acting  under  his  orders,  for  forcibly  denying  it,  then  it  fol- 
•lows  that  be  can  not  have  the  far  greater  power  of  proclaiming 


J.  w.  Gordon's  argument.  41 

martial  law — a  power  which  embraces  the  suspension  not  only 
of  the  writ  of  habeas  corpus^  but  of  all  other  writs  and  laws, 
even  the  Constitution  itself. 

And,  hence,  I  conclude,  that  there  is  not,  and  can  not  possi- 
bly be,  any  power  in  a  government  like  ours  to  declare  martial 
law,  unless  it  be  upon  the  theater  of  active  military  operations ; 
and  that  every  such  declaration  of  martial  law^  in  any  state,  or 
place,  not  subject  to  such  operations,  is  mere  naked  unauthorized 
force,  and  altogether  unjustifiable ;  that  the  true  test  of  the  pres- 
ence, in  any  state  or  place,  of  such  military  operations  as  justi- 
fies a  proclamation  of  martial  law,  is  found  in  the  fact  that  the 
courts  of  justice  therein  are  closed,  and  the  administration  of 
justice  stopped  by  the  presence  of  hostile  armies;  that, 
whenever  that  is  not  the  case  in  any  part  of  the  United  States, 
martial  law,  in  no  possible  view,  can  rightfully  exist ;  and, 
finally,  as  the  courts  of  justice  in  this  State  are  proven,  in  this 
case,  to  be  open  at  this  time,  and  to  have  been  so  all  the  time, 
both  before  and  since  the  arrest  of  the  accused,  any  attempt  to 
enforce  martial  law  against  them  is  a  grievous  wrong,  not  only 
to  them,  but  to  the  whole  country;  and,  indeed,  to  the  general 
cause  of  freedom  and  free  government  throughout  the  world. 

While  upon  this  branch  of  the  subject — the  power  to  declare 
martial  law — I  beg  leave  to  repeat  a  few  propositions  urged  in  a 
former  trial.  I  am  now  prepared  to  support  them  by  high  mil- 
itary authority,  which  was  not  then  at  hand.  They  are  as 
follow : 

"  The  charges  in  this  cause  involve  capital  and  infamous 
crimes ;  and  the  constitution  of  the  United  States  expressly 
provides  that 

"  ^No  person  shall  be  held  to  answer  for  a  capital  or  otherwise 
infamous  crime,  unless  on  a  presentment  or  indictment  by  a 
grand  jury,  except  in  cases  arising  in  the  land  or  naval  forces, 
or  in  the  militia  when  in  actual  service  in  time  of  war  or  public 
danger.'  (Amend.  Const.  U.  S.,  Art.  5.)  And,  again,  *in  all 
criminal  cases,  the  prisoner  shall  enjoy  the  right  to  a  speedy 
and  public  trial,  by  an  impartial  jury  of  the  State  and  district 
where  the  crime  shall  have  been  committed,'  &c.  Amend. 
Const,  Art.  6. 

"  These  provisions  were  adopted  after  the  organization  of  the 
government  of  the  United  States  under  the  present  constitution, 
and  for  the  purpose  of  placing  the  trial  by  jury  entirely  beyond 
the  power  of  Congress,  and  of  all  other  branches  of  the  gov- 
ernment. The  constitution,  as  originally  adopted,  contained  the 
following  provision  on  the  subject :  '  The  trial  of  all  crimes,  ex- 
cept in  cases  of  impeachment,  shall  be  by  jury ;  and  such  trial 
shall  be  held  in  the  state  where  such  crime  shall  have  been  com- 
mitted.' (Art.  4,  §  2.)  So  jealous  were  the  people  of  the  right 
in  question  that  they  required  the  amendments  I  have  already 
quoted  notwithstanding  this  original  provision. 


42  J.  w.  Gordon's  argument. 

'*  The  accused  are  citizens  of  the  United  States,  and  of  the  state 
of  Indiana,  not  in  the  land  or  naval  forces,  or  in  the  militia  in 
actual  service.  They  are,  therefore,  not  within  the  exception  of 
the  fifth  article  of  amendments  just  cited.  The  exception  does 
not  aftect  their  right  any  more  than  if  it  did  not  exist.  [On  the 
contrary,  it  makes  it  altogether  more  clear  and  undeniable.] 
These  several  provisions  are  absolute  as  to  them;  and  if  any 
constitutional  provisions  can  protect  a  right,  it  would  seem  they 
ought  to  be  protected  from  a  trial  not  in  conformity  with  them. 
Indeed,  it  would  seem,  they  can  not  in  fairness  be  tried  without 
being  first  presented  or  indicted  by  a  grand  jury,  nor  without 
a  petit  jury  of  the  district  wherein  their  alleged  offenses  were 
committed." 

Lieut.  General  Scott,  in  his  Auto-Biography,  republishes  an 
article  published  by  him  in  the  National  Intelligencer,  in  1842. 
From  this  article  I  extract  the  following  paragraphs,  which  im- 
mediately follow  the  amendments  of  the  constitution  already 
quoted : 

"If  these  amendments  do  not  expressly  secure  the  citizen,  not 
belonging  to  the  army,  from  the  possibility  of  being  dragged 
before  a  council  of  loar,  or  court  martial,  for  any  crime,  or  on  any 
pretense  whatsoever,  then  there  can  he  no  security  for  any  human 
right,  under  any  human  institutions! 

"Congress  and  the  President  could  not,  if  they  were  unani- 
mous, proclaim  martial  law  in  any  portion  of  the  United  States, 
without  first  throwing  these  amendments  into  the  fire.  If  Mr. 
Madison,  (begging  pardon  of  his  memory  for  the  violent  suppo- 
sition,) had  sent  an  order  to  General  Jackson  to  establish  the 
odious  code  over  the  citizens  of  New  Orleans,  during,  before,  or 
after  the  siege  of  that  capital,  it  w  ould  have  been  the  duty  of 
the  general,  under  his  oath,  to  obey  the  constitution,  and  to 
have  withheld  obedience;  for,  by  the  ninth  Article  of  War, 
(the  only  one  on  orders^  officers  are  not  required  to  obey  any  but 
'lawful  commands.'"     Vol.  1,  p.  292. 

Again,  he  says : 

"When  Pompey  played  the  petty  tyrant  at  Sicily,  as  the 
lieutenant  of  that  master  despot  Sylla,  he  summoned  before 
him  the  Mammertines.  That  people  refused  to  appear,  alleging 
that  they  stood  excused  by  an  ancient  privilege  granted  them 
by  the  Romans.  'What,'  said  Sylla's  lieutenant,  'will  you 
never  have  done  with  citing  laws  and  privileges  to  men  who 
wear  swords.'  Roman  liberty  had  already  been  lost  in  the  dis- 
temperature  of  the  times.  jk  *  >k  ^k  * 

If  Pompey  had  gained  the  battle  of  Pharsalia,  would  his  odious 
reply  to  the  Mammertines  have  been  forgiven  by  the  lovers  of 
human  liberty  ?  With  such  maxims  of  government,  it  was  of  lit- 
tle consequence  to  the  Roman  world  that  Caesar  won  the  day. 
A  Verres  would  have  been  as  good  as  either."     Id.,  p.  294. 


43 

He  also  gives  the  following  fact  in  our  own  history,  which, 
although  a  little  out  of  its  place,  I  yet  beg  leave  to  insert  as  in- 
dicative of  the  spirit  in  which  the  struggle  of  1776  was  con- 
ducted by  the  founders  of  our  government : 

"In  South  Carolina,  during  the  Eevolutionary  War,  at  the 
moment  when  Sir  Henry  Clinton  was  investing  the  devoted  city 
of  Charleston,  and  the  tories  in  arms  everywhere,  the  Legisla- 
ture empowered  her  excellent  Governor,  John  Kutledge,  after 
consulting  with  such  of  his  council  as  he  conveniently  could,  *to 
do  everything  necessary  for  the  public  good,  except  the  talcing 
away  of  the  life  of  a  citizen  without  legal  trial.'  Under  that  excep- 
tion at  a  time  when  there  was  no  constitution  of  the  United 
States,  there  was  no  Louallier  deprived  of  the  one,  and  put  in 
jeopardy  of  the  other,  by  martial  law  J'    Id.,  pp.  297,  289. 

But  the  same  distinguished  General  has  consistently,  through- 
out his  whole  life,  maintained  the  same  opinions  on  this  subject. 
In  the  month  of  October,  1846,  he  submitted  to  Secretary  Marcy 
a  projet  for  the  purpose  of  enabling  generals  of  our  armies,  then 
in  the  field  in  Mexico,  to  enforce  martial  law  for  the  protection 
of  our  armies  against  lawlessness  on  the  part  of  the  people  of 
that  country,  and  the  people  against  lawlessness  on  the  part  of 
our  soldiers,  in  cases  not  provided  for  in  our  Articles  of  War. 
In  this  communication,  among  many  other  things,  he  says : 

"It  will  be  seen  that  I  have  endeavored  to  place  all  necessary 
limitations  on  martial  law.  1.  By  restricting  it  to  a  foreign  hos- 
tile country.  2.  To  offenses  enumerated  with  some  accuracy. 
3.  By  assimilating  councils  of  war  to  courts  martial.  4.  By  re- 
stricting punishments  to  the  known  laws  of  some  one  of  the 
States,"  &c. 

And,  having  shown  the  course  usually  pursued  by  British  Com- 
manders, under  like  circumstances,  he  proceeds  to  say  : 

"  This  law  " — he  was  asking  for  an  act  of  Congress — "  can 
have  no  constitutional,  legal  or  necessary  existence  i(;i7Am  the  United 
States.  At  home,  even  the  suspension  of  the  writ  of  habeas  cor- 
pus by  Congress,  could  only  lead  to  indefinite  incarceration 
of  an  individual,  or  individuals,  who,  if  further  punished  at  all, 
could  only  he  so  through  the  ordinary  or  common  law  of  the 
land."  5  Exec.  Doc,  80  Congress,  1st  session.  Doc.  59,  pp.  50, 
52. 

This  projet,  apparently  so  reasonable  and  so  necessary,  was, 
however,  never  adopted  by  the  administration  of  Mr.  Polk;  and 
we  accordingly  find  the  Secretary  of  War,  about  the  same  time, 
directing  General  Taylor  to  release  from  confinement,  and  send 
out  of  his  lines,  a  notorious  murderer,  because  the  Articles  of 
War  did  not  then  authorize  his  trial  by  a  court  martial,  although 
he  was  a  soldier.  And  so  the  Articles  of  War  remained  until 
the  present  rebellion,  notwithstanding  the  international  laws 
and  usages  of  war  clearly  clothed  our  generals,  in  the  enemy's 


44  J.  w.  Gordon's  argument. 

country,  with  the  power  requisite  to  punish  such  offenses  by 
martial  law.  Grotius,  De  Jure  Belli  ac  Pacis,  lib.  3,  cap.  8 ;  Vat- 
tel's  Law  of  Nations,  lib.  3,  chap.  8;  and  Wheaton's  Elements 
of  International  Law,  part  4,  chap.  2. 

Since  the  present  rebellion  began,  Congress  have  enlarged  the 
jurisdiction  of  courts  martial  over  soldiers,  so  as  to  embrace  such 
cases.  In  the  same  act,  too,  they  have  made  the  punishments 
affixed  to  such  crimes  by  the  laws  of  the  state  where  they  may 
be  committed,  the  measure,  in  one  respect  at  least,  of  the  pun- 
ishments to  be  inflicted  by  such  courts.  The  act,  however,  i& 
limited  in  its  operations  to  soldiers.  Hence  I  infer  that  it  was 
not  intended  to  extend  to  citizens;  and  this  upon  the  long  estab- 
lished principle,  "  that  affirmatives  in  statutes ^  that  introduce  new 
laivs  do  imply  a  negative  of  all  that  is  not  in  thej^urviewJ'  Hobart's 
Kep.,  p.  298. 

It  might  readily  be  shown  that,  upon  all  the  principles  of  con- 
struction and  interpretation  applicable  to  constitutional  pro- 
visions in  regard  to  the  right  of  trial  by  jury,  that  they  occupy 
a  favored  relation  to  the  other  provisions  of  that  instrument. 
In  the  first  place,  it  stands  among  the  reserved  rights  of  the  peo- 
ple. It  is,  as  it  were,  placed  in  a  BUI  of  Eights;  and  is  thus  en- 
titled to  a  favorable,  or  liberal  construction,  as  in  favor  of  liberty^ 
and  against  the  powers  granted,  which,  simply  because  they  are 
encroachments  upon  liberty,  must  be  strictly  construed.  There 
are  no  rules  better  established  in  our  constitutional  jurisprudence 
than  these.  Besides,  amendments  must  always  prevail  as  against 
provisions  conflicting  with  them;  and  the  right  of  trial  by  jury 
is  secured  by  amendments  to  the  constitution.  If  they  had  not 
been  so  named,  the  mere  fact  that  they  were  adopted  after  the 
constitution,  and  by  equal  authority  to  that  by  which  it  was 
adopted,  entitles  them  to  prevail  against  any  provision  conflict- 
ing with  them ;  for  as  it  is  not  possible  for  one  Parliament,  or 
Congress,  to  bind  the  hands  of  a  subsequent  one,  so  one  genera- 
tion of  the  people  can  not  bind  the  next,  or  even  itself,  at  a  sub- 
sequent time. 

I  disagree  with  the  opinion  expressed  by  Mr.  Attorney  Gen- 
eral Gushing,  in  an  opinion  which  I  have  already  quoted,  in 
which  he  seems  to  hold  that  these  provisions  in  respect  to  the 
right  of  trial  by  jury,  are  of  but  little  value  on  account  of  the 
very  general  terms  in  which  they  are  expressed.  He  should 
have  remembered,  however,  that  they  were  adopted  by  the 
framers  of  the  constitution  from  ancient  English  laws,  and  had 
received  a  fixed  and  practical  signification  and  Application  for 
ages.  Mr.  Justice  Story  was  not  inclined  to  regard  them  as 
mere  "glittering  generalities;"  for  he  thus  descants  upon  the 
rights  they  secure: 

"  It  seems  hardly  necessary  in  this  place  to  expatiate  on  the 
antiquity  or  importance  of  the  trial  by  jury  in  criminal  cases. 


45 

It  was  from  very  early  times  insisted  on  by  our  ancestors,  in  the 
parent  country,  as  the  great  bulwark  of  their  civil  and  political 
liberties ;  and  watched  with  an  unceasing  jealousy  and  solici- 
tude. The  right  constitutes  one  of  the  fundamental  articles  of 
Magna  Charta,  in  which  it  is  declared :  *  ISullus  homo  capiatur, 
nee  imprisonetur,  aut  exulit,  aut  aliquo  modo  distruatur,  ^c;  nisi  per 
legale  judicium  parium  suorum,  vel  per  legem  teirce;  no  man  shall 
be  arrested,  nor  imprisoned,  nor  banished,  nor  deprived  of  life, 
&c.,  but  by  the  judgment  of  his  peers,  or  by  the  law  of  the 
land.'  The  judgment  of  his  peers  here  alluded  to,  and  com- 
monly called,  in  the  quaint  language  of  former  times,  a  trial  per 
pais,  or  trial  by  the  country,  is  the  trial  by  a  jury,  who  are 
called  the  peers  of  the  party  accused,  being  of  the  like  condi- 
tion and  equality  in  the  State.  When  our  more  immediate  an- 
cestors removed  to  America,  they  brought  this  great  privilege 
with  them,  as  their  birthright  and  inheritance,  as  a  part  of  that 
admirable  common  law  which  had  fenced  round  and  interposed 
barriers  on  every  side  against  the  approaches  of  arbitrary 
power.  It  is  now  incorporated  into  all  our  State  constitutions 
as  a  fundamental  rights  and  the  constitution  of  the  United  States 
would  have  been  justly  obnoxious  to  the  most  conclusive  objection,  if  it 
had  not  recognized  and  confirmed  it  in  the  most  solemn  terms, 

"  The  great  object  of  a  trial  by  jury  in  criminal  cases  is  to 
guard  against  a  spirit  of  oppression  and  tyranny  on  the  part  of 
rulers ;  and  against  a  spirit  of  violence  and  vindictiveness  on 
the  part  of  the  people.  Indeed,  it  is  often  more  important  to 
guard  against  the  latter  than  the  former.  The  sj^mpathies  of 
all  mankind  are  enlisted  against  the  revenge  and  fury  of  a 
single  despot,  and  every  attempt  will  be  made  to  screen  his  vic- 
tims. But  how  difficult  is  it  to  escape  from  the  vengeance  of 
an  indignant  people,  roused  to  hatred  by  unfounded  calumnies, 
or  stimulated  to  cruelty  by  bitter  political  enmities,  or  unmeas- 
ured jealousies.  The  appeal  for  safety  can,  under  such  circum- 
stances, scarcely  be  made  by  innocence  in  any  other  manner 
than  by  the  severe  control  of  courts  of  justice,  and  by  the  firm 
and  impartial  verdict  of  a  jury  sworn  to  do  right ;  and  guided 
solely  by  legal  evidence,  and  a  sense  of  duty.  In  such  a  course 
there  is  a  double  security  against  the  prejudices  of  judges  who 
may  partake  of  the  wishes  and  opinions  of  the  government,  and 
against  the  passions  of  the  multitude,  who  may  demand  their 
victim  with  a  clamorous  precipitation.  So  long,  indeed,  as  this 
palladium  remains  sacred  and  inviolable,  the  liberties  of  a  free 
government  can  not  wholly  fall.  But  to  give  it  real  efficiency, 
it  must  be  preserved  in  its  purity  and  dignity,  and  not  with  a 
view  to  slight  inconveniencies,  or  imaginary  burthens,  be  put 
into  the  hands  of  those  who  are  incapable  of  estimating  its 
worth,  or  are  too  inert,  or  too  ignorant,  or  too  imbecile  to  wield 
its  potent  armor.     Mr.  Justice  Blackstone,  with  the  warmth  and 


46  J.  w.  Gordon's  argument. 

pride  becoming  an  Englishman,  living  under  its  blessed  protec- 
tion, has  said:  'A  celebrated  French  writer,  who  concludes, 
that  because  Rome,  Sparta  and  Carthage  have  lost  their  liber- 
ties, therefore,  those  of  England,  in  time,  must  perish,  should 
have  recollected  that  Rome,  Sparta  and  Carthage,  at  the  time 
their  liberties  were  lost,  were  strangers  to  the  trial  by  jury.' 

"  It  is  observable  that  the  trial  of  all  crimes  is  not  only  to  be 
by  jury,  but  to  be  held  in  the  state  where  they  are  committed. 
The  object  of  this  clause  is  to  secure  the  party  accused  from 
being  dragged  to  a  trial  in  some  distant  state,  away  from  his 
friends,  and  witnesses,  and  neighborhood,  and  thus  to  be  subjec- 
ted to  the  verdict  of  mere  strangers,  who  may  feel  no  common 
sympathy,  or  who  may  even  cherish  animosities  or  prejudices 
against  him.  Besides  this,  a  trial  in  a  distant  state  or  territory 
might  subject  the  party  to  the  most  oppressive  expenses,  or, 
perhaps,  even  to  the  inability  of  procuring  the  proper  witnesses 
to  establish  his  innocence.  There  is  little  danger,  indeed,  that 
Congress  would  ever  exert  their  power  in  such  an  oppressive 
and  unjustifiable  a  manner.  But,  upon  a  subject  so  vital  to  the 
security  of  the  citizen,  it  was  fit  to  leave  as  little  as  possible  to 
mere  discretion.  By  the  Common  Law,  the  trial  of  all  crimes 
is  required  to  be  in  the  county  where  they  are  committed.  Nay, 
it  originally  carried  its  jealousy  still  further,  and  required  that 
the  jury  itself  should  come  from  the  vicinage  of  the  place 
where  the  crime  was  alleged  to  be  committed.  This  was  cer- 
tainly a  precaution,  which,  however  justifiable  in  an  early  and 
barborous  state  of  society,  is  little  commendable  in  its  more  ad- 
vanced stages.  It  has  been  justly  remarked  that,  in  such  cases, 
to  summon  a  jury,  laboring  under  local  prejudices,  is  laying  a 
snare  for  their  consciences,  and  though  they  should  have  virtue 
and  vigor  of  mind  sufficient  to  keep  them  upright,  the  parties  will 
grow  suspicious,  and  indulge  other  doubts  of  the  impartiality  of 
the  trial.  It  was  doubtless  by  analogy  to  this  rule  of  the  Com- 
mon Law,  that  all  criminal  trials  are  required  to  be  in  the  state 
where  committed.  But  as  crimes  may  be  committed  on  the 
high  seas,  and  elsewhere,  out  of  the  territorial  jurisdiction  of  a 
state,  it  was  indispensable  that,  in  such  cases.  Congress  should 
be  enabled  to  provide  a  place  of  trial.  Story  on  the  Const.,  §§ 
1778, 1779, 1780,  et  seq. 

M.  DeTocqueville,  in  discussing  the  institution  of  the  jury, 
gives  very  great  weight  to  its  character  as  a  political  institution. 
In  times  like  these,  we  may,  perhaps,  learn  something  of  the 
value  of  what  we  now  seem  about  to  lose,  even  from  the  words 
of  a  foreigner.     He  says : 

"  The  true  sanction  of  political  laws  is  to  be  found  in  penal 
legislation,  and,  if  that  sanction  be  wanting,  the  law  will  sooner 
or  later  lose  its  cogency.  He  ivho  punishes  infractions  of  the  law, 
iSf  therefore,  the  real  master  of  society.    Now,  the  institution  of 


J.  w.  Gordon's  argument.  47 

the  jury  raises  the  people  itself,  or,  at  least,  a  class  of  citizens, 
to  the  bench  of  judicial  authority.  The  constitution  of  the 
jury  consequently  invests  the  people,  or  a  class  of  citizens,  with 
the  direction  of  society."     1  Democracy  in  America,  p.  309. 

Again,  he  says : 

"The  jury  is  pre-eminently  a  political  institution.  It  must 
be  regarded  as  one  form  of  the  sovereignty  of  the  people. 
When  that  sovereignty  is  repudiated,  it  must  be  rejected ;  or  it 
must  be  adapted  to  the  laws  by  which  that  sovereignty  is  estab- 
lished. The  jury  is  that  portion  of  the  nation  to  which  the  ex- 
ecution of  the  laws  is  entrusted,  as  the  House  of  Parliament 
constitute  that  part  of  the  nation  which  makes  the  laws ;  and 
in  order  that  society  may  be  governed  with  consistency  and 
uniformity,  the  list  of  citizens  qualified  to  serve  on  juries  must 
increase  and  diminish  with  the  list  of  electors."     Id.,  310. 

He  further  says:. 

"The  system  of  the  jury,  as  it  is  understood  in  America,  ap- 
pears to  me  to  be  as  direct,  and  as  extreme  a  consequence  of  the 
sovereignty  of  the  people  as  universal  suffrage.  The  institu- 
tions are  two  instruments  of  equal  power,  which  contribute  to 
the  supremacy  of  the  majority.  All  the  sovereigns  who  have 
chosen  to  govern  by  their  own  authority,  and  to  direct  society  instead 
of  obeying  its  direction,  have  destroyed  or  enfeebled  the  institution  of 
the  jury.  The  monarchs  of  the  house  of  Tudor  sent  to  prison 
jurors  who  refused  to  convict,  and  !Rapoleon  caused  them  to  be 
returned  by  his  agents."     Id.,  p.  310. 

How  much  it  is  to  be  regretted  that  any  American  citizen,  and 
especially  one  in  high  position,  should  allow  himself  to  be  driven 
by  the  terrible  condition  of  the  country,  or  any  other  considera- 
tion, to  disparage  the  trial  by  jury  in  criminal  cases ;  and,  in  the 
very  teeth  of  the  constitution  of  his  'country,  publicly  express 
his  regret  that  the  jury  stands  in  the  way  of  a  system  of  penal 
administration,  which  may  be  more  certain  to  conform  to  his  own 
private  views  of  justice ;  and  to  hold  men  to  answer  "charges  of 
crimes"  not  "well  defined  by  law."  That  any  cause  should  have 
led  an  American  citizen  to  such  conclusions,  is,  I  humbly  conceive, 
one  of  the  very  worst  signs  of  these  evil  times.  If  our  country  is 
to  be  successful  in  its  present  struggle,  and  if  its  liberties  are 
destined  to  survive,  the  jury,  venerable  for  its  antiquity  and 
sacred  for  its  uses,  must  go  with  us,  in  all  its  vigor,  through  the 
red-sea,  in  the  midst  of  which  we  are  now  journeying.  To  aban- 
don it  now  is  to  give  up  the  contest  for  free  government  in  which 
we  are  engaged.  We  must  not,  therefore,  abandon  it  in  these 
dark  days,  and  it  will  follow  us  again  into  the  light,  and  long  con- 
tinue to  protect  and  bless  us  in  the  possession  of  a  manly  freedom, 
in  the  happy  years  to  come. 

I  think  it  has  already  been  sufficiently  shown,  that  there  is, 
in  fact,  no  power  in  the  general  government,  nor  behind  that,  in 


48  J.  w.  Gordon's  argument. 

the  society  which  it  represents,  to  proclaim  martial  law  through- 
out the  whole  country.  It  may,  perhaps,  have  a  local  operation, 
as  a  mere  fact,  resulting  from  the  presence  of  hostile  armies; 
but,  in  that  case,  it  will  exist  without  a  proclamation  as  well  as 
with  it.  Dr.  Lieber,  whom  I  have  already  quoted,  and  whose 
works  are  of  the  highest  possible  value  on  all  subjects  which  he 
touches,  in  General  Orders,  No.  100,  1863,  of  our  War  Depart- 
ment, fully  sustains  this  view.  lie  says,  or  rather  the  Com- 
mander-in-Chief, speaking  his  words,  says :  "  The  presence  of 
a  hostile  army  proclaims  its  martial  lawJ'  If,  therefore,  there 
be  no  rightful  power  in  the  government  to  proclaim  martial  law 
over  any  part  of  its  own  territories,  where  the  fact  is  not  al- 
ready established  by  events,  then  Indiana  is  certainly  not  undei 
martial  law  to-day,  and  has  never  yet  been. 

If,  however,  in  the  consideration  of  this  branch  of  the  sub- 
ject, you  should  still  hold  that  the  government,  or  any  depart- 
ment thereof,  may  declare  martial  law  without  the  presence  of 
the  fact,  then  other  questions  naturally  present  themselves. 
Among  these,  I  may  be  permitted  to  ask  the  following : 

Has  the  government  of  the  United  States,  or  any  department 
thereof,  declared  martial  law  in  the  state  of  Indiana  ? 

Who  has  done  it  ? — the  President,  or  some  of  his  generals  ? 

Has  Congress  authorized  it  ?  Let  us  examine  and  see  how 
the  fact  stands.  Has  that  body  taken  that  great,  and,  for  them- 
selves, as  a  department  of  the  goverement,  it  may  be,  final  step. 
Surely  Congress  has  not  turned /do  de  se.  On  the  contrary  they 
have  showed  great  prudence  and  discretion,  as  well  as  regard  for 
the  constitution,  and  our  free  institutions  existing  under  it; 
while,  at  the  same  time,  they  have  taken  due  care  that  the  Bepublic 
may  suffer  no  detriment. 

I  can  not  more  pointedly  and  briefly  present  the  action  of 
Congress  on  this  subject  than  was  done  in  the  case  of  Mr.  Dodd; 
and,  therefore,  adopt  what  was  then  urged  upon  your  considera- 
tion: 

"  By  an  act  approved  July  31, 1864,  (12  Stat,  at  Large,  p.  284,) 
conspiracies  are  defined  and  the  mode  of  punishment  prescribed, 
namely :  by  trial  in  the  circuit  or  district  courts  of  the  United 
States,  of  the  proper  circuit  or  district.  Can  these  parties  be 
tried  before  any  other  tribunal  ?     The  defendants  hold  not. 

"  By  the  President's  proclamation  of  September  24,  1862,  sus- 
pending the  privilege  of  the  writ  of  habeas  corpus^  it  was  order- 
ed, *  that  during  the  existing  insurrection,  and  as  a  necessary 
measure  for  suppressing  the  same,  all  rebels  and  insurgents,  their 
aiders  and  abettors  within  the  United  States,  shall  be  subject  to 
martial  law,  and  liable  to  trial  and  punishment  by  court  martial 
or  military  commission.'  Without  stopping  to  enquire  whether 
this  proclamation  was  authorized ;  and,  if  so,  whether  it  em- 
braced persons  charged  with  committing  a  substantive  offense, 


J.  w.  Gordon's  argument.  49 

within  a  state,  not  in  insurrection,  and  where  the  United  States 
courts  were  in  full  exercise  of  their  powers,  the  defendants  claini 
that  it  has  heen  superceded  by  the  act  of  Congress  of  the  3d  of 
March,  1863.  [12  Stat,  at  Large,  755,]  relating  to  the  w^rit  of 
habeas  corpus;  and  by  the  President's  proclamation  based  there- 
on, of  Sept.  15,  1863. 

"The  first  section  of  this  act  of  1863,  authorizes  the  President 
to  suspend  the  writ  of  habeas  corjms. 

"  The  second,  requires  the  Secretaries  of  State  and  War  to  re- 
port to  the  judges  of  the  United  States  circuit  and  district 
courts  the  names  of  all  persons  held  in  military  custody  by 
order  of  the  President,  in  their  respective  districts ;  and,  if  the 
grand  juries  of  the  proper  districts  fail  to  find  bills,  it  is  made 
the  duty  of  the  judges  to  have  all  such  persons  discharged,  on 
taking  the  oath  of  allegiance,  and  giving  bond,  if  required. 

"The  third  section  provides  that  all  persons  so  held,  and  not 
reported,  shall  be  entitled  to  a  discharge  in  the  same  manner  as 
is  provided  in  the  second  section,  after  a  failure,  on  the  part  of 
the  proper  grand  jury,  to  indict  them. 

"Here  are  all  the  sections  of  this  act  which  bear  on  the  ques- 
tion ;  and,  it  will  be  seen,  that  while  they  contemplate  and  sanc- 
tion military  arrests,  they  do  not  countenance  or  authorize  mili- 
tary trials.     On  the  contrary,  they  fairly  discountenance  them. 

"  The  President's  proclamation,  based  on  this  act,  limits  the 
suspension  of  the  habeas  corpus  to  persons  amenable  to  military 
law,  or  to  the  Rules  and  Articles  of  War.  No  order  is  contained 
in  the  proclamation  in  regard  to  trial,  and  the  inference  is  irre- 
sistable,  that  the  proper  courts  are  left  to  act  under  the  rules  of 
law  upon  that  subject ;  and  these  are  too  well  defined  to  require 
comment.  Civil  courts  try  offenses  against  the  law,  committed 
by  citizens — military  courts  try  such  as  are  subject  to  the  Rules 
and  Articles  of  War ;  and  the  defendants  claim  that  they  do  not 
fall  within  that  class." 

I  have  been  able  to  find  no  other  act  of  Congress,  passed  since 
the  3d  of  March,  1863,  which  authorizes  or  countenances  in  any 
manner  whatever  the  notion  that  it  has,  at  any  time,  been  the  in- 
tention of  that  body  to  establish  martial  laic,  or  to  authorize  any 
one  else  to  do  so,  or  even  to  permit  it.  This  act  does,  indeed,  au- 
thorize the  suspension  of  the  writ  of  habeas,  corpus^  if  Congress 
can  transfer  the  disccretion  conferred  upon  them  by  the  constitu- 
tion, to  determine  at  what  time,  in  the  progress  of  an  invasion,  or 
rebellion,  the  emergency  required  has  arisen,  when  the  public 
safety  requires  its  suspension.  That  Congress  can  do  any  such 
thing,  I  deny ;  but  do  not  choose  to  stop  here  to  discuss  the 
point,  as  it  is  not  involved  in  this  cause. 

If  we  admit,  for  the  sake  of  argument,  that  Congress  have 
invested  the  President  with  the  power  both  to  judge  and  to  act 
in  the  proper  emergency ;  and  that  he  has  well  availed  himself 


50 

of  this  power  by  publishing  his  proclamation  of  September  15, 
1863,  what  follows  ?  Certainly  not,  that  Congress  have  proclaim- 
ed, or  authorized  him  to  proclaim  martial  law ;  but  have,  on  the 
other  hand,  by  a  controlling  implication,  provided  that  martial 
law,  so  far  as  the  trial  of  a  citizen  is  concerned,  shall  not  be  toler- 
ated ;  but  that  such  citizen  shall,  in  all  cases,  when  under  military 
arrest,  be  turned  over  to  the  proper  civil  tribunals — the  circuit 
or  district  courts,  of  the  proper  district,  for  trial  according  to 
law;  or  discharged  either  absolutely  or  conditionally,  if  no  bill 
of  indictment  be  found  against  him.  And  this  harmonizes  well 
with  what  Col.  Scott,  in  his  Military  Dictionar}^  lays  down  as 
the  consequence  of  a  declaration  or  proclamation  of  martial  law 
within  the  United  States.     He  says  : 

"Within  the  United  States,  therefore,  the  efiect  of  a  declara- 
tion of  martial  law  would  not  be  to  subject  citizens  to  trial  by 
courts-martial;  but  it  would  involve  simply  the  suspension  of  the 
writ  of  habeas  corpus,  under  the  authority  given  in  the  second 
clause  of  section  nine  of  the  constitution,  viz  :  *The  privilege 
of  the  writ  of  habeas  corpus  shall  not  be  suspended,  unless  when,, 
in  case  of  rebellion  or  invasion,  the  public  safety  may  re- 
quire it.' 

"  The  suspension  of  this  privilege  would  enable  the  com- 
mander to  incarcerate  all  dangerous  citizens ;  but,  when  brought 
to  trial,  the  citizen  w^ould  necessarily  come  before  the  ordinary 
civil  courts  of  the  land."  Military  Dictionary,  tit.  Martial 
Laio. 

And  such  would  seem  to  be  the  opinion  of  Mr.  Attorney  Gen- 
eral Cushing,  who  says : 

"  I  say  we  are  without  law  on  the  subject." 

"  The  constitution,  it  is  true,  empowers  Congress  to  declare 
war,  to  raise  and  support  armies,  to  provide  and  maintain  a 
navy,  to  make  rules  for  the  government  of  the  land  and  naval 
forces,  to  provide  for  calling  forth  the  militia  to  execute  the 
laws  of  the  union,  suppress  insurrections  and  repel  invasions, 
and  to  provide  for  organizing,  arming  and  disciplining  the  mili- 
tia, and  for  governing  such  part  of  them  as  may  be  employed 
in  the  service  of  the  United  States.  But  none  of  these  powers 
has  been  exerted  in  the  solution  of  the  present  question. 

"  In  the  amendments  of  the  constitution,  among  the  provisions 
of  general  right  which  they  contain,  are  some,  the  observance 
of  which  seems  incompatible  with  the  existence  of  martial  law, 
or,  indeed,  any  other  of  the  supposable,  if  not  necessary  inci- 
dents of  invasion  or  insurrection.  But  these  provisions  are  not 
sufficiently  definite  to  be  of  practical  application  to  the  subject 
matter. 

"  In  the  constitution  there  is  one  clause  of  more  apparent  rele- 
vancy, namely,  the  declaration  that  Hhe  privilege  of  the  writ 


51 

of  habeas  corpus  shall  not  be  suspended,  unless,  when  in  case  of 
rebellion,  or  invasion,  the  public  safety  may  require  it.'  This 
negation  of  power  follows  the  enumeration  of  the  powers  of 
Congress,  but  it  is  general  in  its  terms ;  it  is  in  the  section  of 
things  denied,  not  only  to  Congress,  but  to  the  federal  govern- 
ment as  a  government,  and  to  the  States.  I  think  it  must  be 
considered  as  a  negation  reaching  all  the  functionaries,  legisla- 
tive or  executive,  civil  or  military,  supreme  or  siibordinate,  of 
the  federal  government:  that  is  to  say,  that  there  can  be  no 
valid  suspension  of  the  writ  of  habeas  corpus  under  the  juris- 
diction of  the  United  States,  unless  when  the  public  safety  may 
require  it,  in  cases  of  rebellion  or  invasion.  And  the  opinion  is 
expressed  by  the  commentators  on  the  constitution,  that  the 
right  to  supend  the  writ  of  habeas  corpus;  and,  also,  that  of 
judging  when  the  exigency  has  arisen,  belong  exclusively  to 
Congress.  Story's  Comm.,  §  1342;  1  Tucker's  Biackstone, 
p.  292. 

"  In  this  particular,  as  in  many  others,  the  constitution  has 
provided  for  a  secondary  incident,  or  a  single  fact,  without  pro- 
viding for  the  substance,  or  for  the  general  fact;  just  ^  when  it 
gives  power  to  establish  post-roads,  but  says  nothing  of  the 
transportation  of  the  mails.  It  does  not  say  that  martial  law  shall 
not  exist,  unless  when  the  public  safety  may  require  it,  in  case  of 
insurrection  or  iavasion ;  but  only  that  the  writ  of  habeas  corpus 
shall  not  be  suspended,  except  in  such  circumstances.  But,  if 
the  emergency  of  insurrection  or  invasion,  involving  the  public 
safety,  be  requisite  to  justify  the  suspension  of  the  writ  of 
habeas  corpus,  surely  that  emergency  must  be  not  the  less  an  es- 
sential prerequisite  of  the  proclan.ation  of  martial  law,  and  of 
its  constitutional  existence.  » 

^ "  We  have  in  Great  Britain  several  recent  examples  of  acts  to 
give  constitutional  existence  to  the  fact  of  martial  latv.  One  is 
the  act  of  Parliament  of  the  3  and  4  Geo.  4,  ch.  4,  designed  for  the 
more  effectual  suppression  of  local  disturbances  in  Ireland. 
Another  act  of  that  same  nature,  that  of  57  Geo.  3,  ch.  3,  was  for 
the  case  of  apprehended  insurrection  *in  the  metropolis,  and  in 
many  other  parts  of  Great  Britain,'  which  act  was  followed  the 
next  year  by  the  indemnifying  act  of  58  Geo.  3,  ch.  6.  These 
examples  show,  that  in  the  opinion  of  the  statesmen  of  that 
country,  the  general  fact  of  the  existence  of  martial  law,  and  its 
incident,  the  suspension  of  the  writ  of  habeas  corpus,  alike  re- 
quire the  exercise  of  the  power  of  the  supreme  legislative 
authority.  (1  Blacks.  Comm.,  p.  136,  Coleridge's  note;  Bow- 
yer's  Const.  Law,  p.  424.) 

"  That  idea  pervades  the  constitutional  organization  of  the  sev- 
eral States  of  the  union.  Thus,  in  Massachusetts  it  is  provided 
that  the  writ  of /la^eas  corpus  *  shall  not  be  suspended  by  the 
Legislature,  except  upon  the  most  urgent  necessity,  and  press- 


62  J.  w.  Gordon's  argument. 

irig  occasions,  and  for  a  limited  time/  In  other  states,  while 
the  exigency  for  the  suspension  of  the  writ  is  detined,  as  in  New 
York,  the  suspending  authority  is  not  specified.  In  others, 
there  is  express  general  provision,  as  to  the  suspension  of 
laws,  without  specifying  this  writ — the  general  power  of  sus- 
pension being  confided  to  the  legislature,  as  in  Maryland,  Vir- 
ginia and  Tennessee.  The  State  of  Pennsylvania  has  both  pro- 
visions in  its  constitution.  And,  it  may  be  assumed,  as  a  gen- 
eral doctrine  of  constitutional  jurisprudence  in  all  the  United 
States,  that  the  power  to  suspend  laios,  whether  those  granting 
the  writ  of  habeas  corpus,  or  any  other,  is  vested  exclusively  in  the 
legislature  of  the  particular  State. 

"  How  intimate  the  relation  is,  or  may  be,  between  the  procla- 
mation of  martial  law  and  the  suspension  of  the  writ  of  habeas 
corpus,  is  evinced  by  the  particular  facts  of  the  case  before  me — 
it  appearing,  as  well  by  the  report  of  the  G-overnor  as  by  that 
of  Chief  Justice  Lander,  that  the  very  object  for  which  martial 
lav)  was  proclaimed  was  to  prevent  the  use  of  the  writ  in  behalf 
of  certain  pei'sons  held  in  confinement  by  the  military  authority, 
on  the  charge  of  treasonable  intercourse  with  hostile  Indians. 
That,  however,  is  but  one  of  the  consequences  of  martial  law, 
and  by  no  means  the  largest  or  gravest  of  those  consequences, 
since,  according  to  every  definition  of  inartial  law,  it  suspends, 
for  the  time  being,  all  the  laws  of  the  land,  and  substitutes,  in 
their  place  no  law,  that  is,  the  mere  will  of  the  military  com- 
mander. 

"  There  may  undoubtedly  be,  and  have  been,  emergencies  of 
necessity,  capable  of  themselves  to  produce,  and,  therefore,  to 
justify  such  supension  of  law ;  and  involving,  for  the  time,  the 
omnipotence  of  military  power.  But  such  a  necessity  is  not  in 
the  range  of  mere  legal  questions.  When  martial  laio  is  pro- 
claimed, under  circumstances  of  assumed  necessity,  the  procla- 
mation must  be  regarded  as  the  statement  of  an  existing  fact,  rather 
than  the  legal  creation  of  that  fact.  In  a  beleaguered  city,  for  in- 
stance, the  state  of  siege  lawfully  exists,  because  the  city  is  be- 
leagured ;  and  the  proclamation  of  martial  law,  in  such  case,  is 
but  notice,  and  authentication  of  a  fact,  that  civil  authority 
has  become  suspended,  of  itself,  by  the  force  of  circumstances  ; 
and  that,  by  the  same  force  of  circumstances,  the  military 
power  has  had  devolved  upon  it,  without  having  authorita- 
tively assumed,  the  supreme  control  of  affairs,  in  the  care  of  the 
public  safety  and  conservation.  Such,  it  would  seem,  is  the 
true  explanation  of  the  proclamation  of  martial  law  at  New 
Orleans  by  General  Jackson."  8  Opinions  Atty's  Gens,  of  U".  S., 
supra. 

Now,  this  whole  opinion  establishes,  I  think,  beyond  success- 
ful controversy,  three  points,  namely  : 

1.  That  an  act  of  Congress  is  necessary  to  a  suspension  of  the 
writ  of  habeas  corpus ; 


J.  w.  Gordon's  argument.  53 

2.  That  the  suspension  of  that  writ  is  emhraced  in  a  procla- 
mation of  martial  loio  as  one  of  the  incidents  thereof;  and, 

3.  That,  a  fortiori^  an  act  of  Congress  is  necessary  to  authorize 
a  proclamation  of  martial  law. 

We  are  thus,  again,  on  solid  footing;  for,  in  all  cases  where 
a  proclamation  of  martial  law  is  necessary,  Congress  must  act — 
must  authorize  it  before  it  can  properly  issue.  Hence,  martial 
laiD  can  only  be  declared  by  act  of  Congress  directly ;  or  by  act 
of  Congress  conferring  authority  on  some  other  department  or 
officer  of  the  government  to  make  such  proclamation.  The 
measure,  in  either  case,  must  proceed  from  Congress. 

But  a  brief  examination  of  the  acts  of  Congress,  passed  since 
the  commencement  of  the  current  rebellion,  will  satisfy  you 
that  Congress  has  not  interfered  in  this  matter  either  by  direct 
or  indirect  means,  except,  as  already  noticed,  to  deny  any  such 
power  to  the  President  or  those  under  him.  If,  therefore,  mar- 
tial law  must,  in  any  case,  be  brought  in  by  aft  authoritative 
declaration,  proclamation,  or  other  public  act,  before  it  can 
properly  exist,  then,  no  such  declaration  or  proclamation  has 
yet  been  made,  or  act  done ;  and  for  the  best  of  all  possible 
reasons,  namely  :  Congress  has  not  authorized  any  such  declara- 
tion or  proclamation  to  be  made,  or  act  to  be  done,  and  it  can 
not,  on  our  present  hypothesis,  be  done  without  such  authority. 

I  believe  the  Judge- Advocate  will  find  it  exceedingly  difficult 
to  turn  to  any  act  of  Congress  conferring  any  such  authority. 
The  act  of  the  3d  of  March,  1863,  is  at  war  with  any  such  au- 
thority; for  why  should  Congress  authorize  the  suspension  of 
the  writ  of  habeas  corpus^  if  they  intended  to  confer  the  greater 
power  to  declare  martial  law  ?  Above  all,  why  should  they  pre- 
scribe terms  upon  which  military  prisoners,  7iot  of  icar^  should 
have  a  trial  in  the  ordinary  courts  of  the  land,  and,  in  case  of  a 
failure  to  indict  them,  should  be  allowed  habeas  corpus  for  their 
discharge?  All  this  is  quite  opposed  to  any  disposition,  on  the 
part  of  Congress,  to  confer  any  such  authority;  and,  indeed,  is 
quite  at  war  with  any  act  done  by  the  President,  before  the  pas- 
sage of  that  act,  either  for  the  suspension  of  the  writ  of  habeas 
corpus^  or  the  establishment  of  martial  laiu. 

But  suppose  that,  although  you  should  hold,  as  I  conceive  you 
must,  that  the  President  can  not  suspend  the  writ  of  habeas  cor- 
pus without  an  act  of  Congress  authorizing  him  to  do  so,  you 
should  yet  maintain  that  he  can  without  any  act  of  Congress 
exercise  the  all  embracing  power  of  establishing  martial  law  all 
over  the  country,  then  the  question  arises : 

Has  he  established  martial  law  ? 

^     We  have  been  told  that  the  President  established  martial  law 

by  his  proclamation  of  September  24, 1862,  which  has  been  held 

up  here,  as  the  solid  basis  of  your  authority  to  sit  in  judgment 

on  the  lives  of  the  citizens  of  Indiana,  who  are  not  in  the  military 

5 


54  J.  w.  Gordon's  argument. 

or  naval  service  of  the  United  States,  and  have  not  been,  if  ever, 
for  many  years.  But  this  proclamation  is  co-extensive  with  the 
territories  of  the  United  States;  and,  if  in  force  any  where,  it 
must  be  everywhere  throughout  the  country.  In  this  view,  it  is 
here,  and  suspends  the  civil  laws  and  institutions  of  this  State  ; 
and  of  all  other  States  of  the  Union.  Is  such  a  supposition  con- 
sistent with  facts?  Can  it  be  reconciled  with  the  subsequent 
action  of  the  President  himself?  It  is,  on  the  contrary,  directly 
contradicted  by  the  acts  both  of  Congress  and  the  President. 
Thus,  the  act  of  Congress  of  March  3,  1863,  six  months  subse- 
quent to  the  proclamation,  authorizes  the  President  to  suspend 
the  writ  of  habeas  corpus,  but  provides  for  a  report  of  his  mili- 
tary prisoners,  not  of  w^ar,  to  the  proper  courts  at  every  term, 
and  fcr  their  trial  therein  if  indicted  ;  but,  if  not  indicted,  then  for 
their  discharge,  provided  they  have  been  imprisoned  twenty  days. 
These  provisions  are  wholly  incompatible  with  the  force  and 
effect  of  every  part  of  the  proclamation  of  September  24,  1862; 
and  DO  less  with  the  notion  that  martial  law  had  actually  been 
proclaimed  and  was  in  force,  than  with  the  notion  that  it  should, 
in  the  future  be  proclaimed,  or  exist  in  future  in  any  place  where 
the  fact  of  war  had  not  suspended  the  civil  law,  and  closed  the 
civil  courts. 

Yet  what  do  we  find  ?  The  President  approved  this  act,  and 
subsequently  acted  under  it  as  the  law  of  the  land ;  and,  of  course, 
as  the  true  exposition  of  the  constitution  in  respect  to  his  power 
over  the  subjects  it  embraced.  It  is  a  plain  expression,  on  the 
part  of  Congress,  and  of  the  President,  that  the  writ  of  habeas 
corpus  can  only  be  suspended  by  law;  and  that  imprisonment  of 
citizens  by  order  of  the  President,  or  his  inferiors,  shall  here- 
after have  a  limit  entirely  independent  of  his  will.  Every  Cir- 
cuit and  District  Court,  within  its  jurisdiction,  is  to  be,  under 
this  act,  a  jail  delivery  to  the  military  prisons  of  all  persons,  like 
the  defendants,  either  by  trial,  or  discharge  without  trial.  I 
may  repeat  here  the  rule  of  interpretation  applicable  to  statutes 
which  bring  in  new  remedies,  namely  :  What  is  affirmed  in 
uch  acts  of  one  thing,  is  denied  of  all  others.  (Hobart,  supra.) 
Then,  as  the  civil  courts  are,  by  this  act,  expressly  given  juris- 
diction of  these  cases,  either  to  try,  or,  if  no  indictment  be  found, 
to  discharge  the  prisoners,  it  follows  that  the  jurisdiction  of  them 
is  denied  to  military  courts  or  commissions. 

The  President  accepted  the  act  of  March  3d,  1863,  as  the  neg- 
ative of  his  proclamation  of  September  24th,  1862.  Otherwise, 
why  did  he  afterwards  issue  another  proclamation  to  suspend 
the  writ  of  habeas  corpus?  If  the  former  proclamation  was 
valid,  that  writ  was  already  suspended ;  and  his  second,  could* 
add  nothing  to  the  force  of  the  first.  But  the  first  proclamation 
contained  a  declaration  of  martial  law.  Now,  if  this  was  valid, 
it  carried  along  with  it,  as  its  inseparable  incident,  the  suspen- 


J.  w.  Gordon's  argument,  55 

81011  of  the  writ  of  habeas  corpus;  and,  if  it  is  still  in  force,  then 
the  act  of  Congress  authorizing  a  subsequent  suspension  thereof, 
and  the  proclamation  to  carry  the  same  into  effect,  issued  on  the 
15th  of  September,  1863,  both  proceed  on  a  false  basis;  for  it  is 
taken  for  granted,  in  both  these  measures,  that  the  writ  of  habeas 
corpus  was  not,  at  the  date  of  either  of  them,  suspended,  which 
could  not  have  been  the  case,  had  either  Congress  or  the  Presi- 
dent regarded  ?nar^ian(??f?  as  then  in  force;  for  martial  law  as 
already  defined,  always  carries  with  it  the  suspensionof  the  writ 
of  habeas  corpus.  In  his  proclamation  of  September  15th,  1863, 
the  President  makes  no  allusion  to  martial  law,  manifestly  in- 
tending to  leave  it  just  where  the  act  of  Congress  had  left  it. 
This  silence  on  the  subject  in  the  last  proclamation  clearly  shows 
that  the  President,  at  its  date,  regarded  himself  as  restrained  by 
the  act  of  Congress,  to  the  suspension  of  the  writ  of  habeas  cor- 
pus;  and  did  not  design  to  transcend  the  authority  thereof, 
by  a  declaration  of  martial  law. 

But  there  is  a  still  later  act  of  the  President's,  that,  in  my 
opinion,  utterly  overthrows  all  pretense  that  martial  laio  is  now 
in  force  in  the  State  of  Indiana.  The  act  to  which  I  refer  is  the 
following  proclamation : 

"  WiiKREAS,  By  a  proclamation  which  was  issued  on  the  15th 
day  of  April,  1861,  the  President  of  the  United  States  announced 
and  declared  that  the  laws  of  the  United  States  had  been  for 
some  time  past,  and  then  were,  opposed,  and  the  execution  there- 
of obstructed,  in  certain  States  therein  mentioned,  by  combina- 
tions too  powerful  to  be  suppressed  by  the  ordinary  course  of 
judicial  proceedings,  or  by  the  powders  vested  in  the  marshals  by 
law ; 

"  And  whereas,  Immediately  after  the  issuing  of  the  said 
proclamation,  the  land  and  naval  forces  of  the  United  States 
were  put  into  activity  to  suppress  the  said  insurrection  and 
rebellion ; 

*'  And  whereas,  The  Congress  of  the  United  States,  by  an  act 
approved  on  the  3d  day  of  March,  1863,  did  enact  that  during 
the  said  rebellion  the  President  of  the  United  States,  whenever 
in  his  judgment  the  public  safety  may  require  it,  is  authorized 
to  suspend  the  privilege  of  the  writ  of  habeas  corpus  in  any  case 
throughout  thp.  United  States,  or  any  part  thereof; 

"And  whereas,  The  said  insurrection  and  rebellion  still  con- 
tinue, endangering  the  existence  of  the  constitution  and  gov- 
ernment of  the  United  States; 

"  And  whereas.  The  military  forces  of  the  United  States  are 
now  actively  engaged  in  suppressing  the  said  insurrection  and 
rebellion  in  various  parts  of  the  States  where  the  said  rebellion 
has  been  successful  in  obstructing  the  laws  and  public  authori- 
ties, especially  in  the  States  of  Virginia  and  Georgia; 

"  And  whereas,  On  the  15th  day  of  September  last,  the  Presi- 


56  J.  w.  Gordon's  argument. 

dent  of  the  United  States  duly  issued  his  proclamation,  wherein 
he  declared  that  the  privilege  of  the  writ  of  habeas  corpus  sh.o[i\d 
be  suspended  throughout  the  United  States  in  the  cases  where, 
by  the  authority  of  the  President  of  the  United  States,  military, 
naval,  and  civil  officers  of  the  United  States,  or  any  of  them, 
hold  persons  under  their  command  or  in  their  custody,  either  as 
prisoners  of  war,  spies,  or  aiders  and  abettors  of  the  enemy,  or 
officers,  soldiers,  or  seamen  enrolled,  or  drafted,  or  mustered,  or 
enlisted  in,  or  belonging  to,  the  land  or  naval  forces  of  the  United 
States,  or  as  deserters  therefrom,  or  otherwise  amenable  to  mili- 
tary law,  or  the  rules  and  articles  of  war,  or  the  rules  or  regula- 
tions prescribed  for  the  military  or  naval  services  by  authority 
of  the  President  of  the  United  States,  or  for  resisting  a  draft, 
or  for  any  other  offence  against  the  military  or  naval  service  ; 

"And  whereas,  Many  citizens  of  the  State  of  Kentucky  have 
joined  the  fortes  of  the  insurgents,  and  such  insurgents  have  on 
several  occasions  entered  the  said  State  of  Kentucky  in  large 
force,  and  not  without  aid  and  comfort  furnished  by  disaffected 
and  disloyal  citizens  of  the  United  States  residing  therein,  have 
not  only  greatly  disturbed  the  public  peace,  but  have  overborne 
the  civil  authorities  and  made  flagrant  civil  war,  destroying 
property  and  life  in  various  parts  of  that  State  ; 

"  And  whereas,  It  has  been  made  known  to  the  President  of 
the  United  States  by  the  officers  commanding  the  national  ar- 
mies, that  combinations  have  been  formed  in  the  State  of  Ken- 
tucky with  a  purpose  of  inciting  rebel  forces  to  renew  the  said 
operations  of  civil  war  within  the  said  State,  and  thereby  to 
embarrass  the  United  States  armies  now  operating  in  the  said 
States  of  Virginia  and  Georgia,  and  even  to  endanger  their 
safety : 

"Now,  therefore,  I,  Abraham  Lincoln,  President  of  the  United 
States,  by  virtue  of  the  authority  vested  in  me  by  the  constitu- 
tion and  laws,  do  hereby  declare  that,  in  my  judgment,  the  pub- 
lic safety  especially  requires  that  the  suspension  of  the  w^rit  of 
habeas  corpus^  so  proclaimed  in  the  said  proclamation  of  the  15th 
of  September,  1863,  be  made  effectual  and  be  duly  enforced  in 
and  throughout  the  said  State  of  Kentucky,  and  that  martial  law 
be  for  the  present  established  therein.  I  do,  therefore,  hereby  re- 
quire of  the  military  officers  in  the  said  State  that  the  privileges 
of  the  w^rit  of  habeas  corpus  be  effectually  suspended  within  the 
said  State,  according  to  the  aforesaid  proclamation,  and  that  mar- 
tial law  be  established  thereirit  to  take  effect  'froyn  the  date  of  this 
proclamation,  the  said  suspension  and  establishment  of  martial  law 
to  continue  until  this  proclamation  shall  be  revoked  or  modified,  but 
not  beyond  the  period  w^hen  the  said  rebellion  shall  have  been 
suppressed  or  come  to  an  end.  And  I  do  hereby  require  and 
command,  as  well  all  military  officers  as  all  civil  officers  and 
authorities  existing  or  found  within  the  said  State  of  Kentucky, 


J.  w.  Gordon's  argument.  57 

to  take  notice  of  this  proclamation,  and  to  give  full  effect  to  the 
same. 

''  The  martial  law  herein  proclaimed,  and  the  things  in  that 
respect  herein  ordered,  will  not  heen  deemed  or  taken  to  inter- 
fere with  the  holding  of  lawful  elections,  or  with  the  proceed- 
ings of  the  constitutional  Legislature  of  Kentucky,  or  with  the 
administration  of  justice  in  ttie  courts  of  law  existing  therein, 
hetwe^n  citizens  of  the  United  States  in  suits  or  proceedings 
which  do  not  affect  the  military  operations  or  the  constituted 
authorities  of  the  government  of  the  United  States. 

"In  testimony  whereof,  I  have  hereunto  set  my  hand,  and 
caused  the  seal  of  the  United  States  to  be  affixed. 

''Done  in  the  city  of  Washington,  this  tifth  day  of  July,  in 
the  year  of  our  Lord  one   thousand  eight  hundred  and 
[l.  s.]     sixty-four,  and  of  the  Indepcndente  of  the  United  States 
the  eighty- ninth. 

"ABRAHAM  LINCOLN. 
"  By  the  President : 

*'  William  H.  Seward,  Secretary  of  State." 

Now,  I  respectfully  submit:  Why  should  the  President  deem 
it  necessary  to  proclaim  martial  law  in  Kentucky,  if  martial  law 
was  already  in  force  by  a  standing,  valid  proclamation,  not  only 
in  that  State,  but  all  over  the  Union?  The  question  crushes 
the  supposition.  But  the  recitals  of  the  last  proclamation  are 
equally  destructive  of  it;  and  the  special  terms  of  the  declar- 
atory portion  of  the  instrument  go  to  the  same  end.  Thus, 
it  is  declared  that  '•^martial  law  be,  for  the  present,  established 
therein," — that  is,  in  the  State  of  Kentucky.  But  according  to 
the  theory  of  the  Judge-Advocate,  martial  law  had  already  been 
established  therein  two  years  almost,  prior  to  this  proclamation ; 
and  in  every  other  State  of  the  Union.  The  President  goes 
{jtill  further  to  overthrow  the  theory  on  which  alone,  you  can 
entertain  jurisdiction  of  this  cause;  for  he  says,  that  the  martial 
law  "established"  in  Kentucky,  by  that  proclamation,  shall 
"take  effect  from  the  date"  thereof,  namely:  the  5th  of  July, 
1864.  What  nonsense  is  this  proclamation  if  the  Judge- Advo- 
cate is  right  in  his  assumption  that  the  proclamation  of  Sep- 
tember 24th,  1862,  had  tdready  established  martial  law  through- 
out the  Union?  If  the  President,  on  the  other  hand,  is  right, 
what  nonsense  is  the  assumption,  that  martial  law  is  in  force  in 
this  State?  The  President  had  reasons  for  his  discrimination 
against  Kentucky;  for  he  recites  them.  But  it  is  quite  unnec- 
essary to  go  into  them.  That  he  did  discriminate  against  her  is 
enough  to  answer  my  purpose;  and  to  place  Indiana  before  you 
in  a  different  condition  from  that  which  she  occupies  in  relation 
to  martial  law.  Indiana  is  not  yet  touched  with  the  curse  of 
martial  law.     Kentucky  is.     I  recur  to  the  old  rule  of  construe- 


58  J.   W.    GORDON'S    ARGUMENT. 

tion,  and  ask  you  to  apply  it  to  this  proclamation.  The  expres- 
sion of  one  excludes  the  rest — of  Kentucky,  Indiana. 

Then,  there  is  no  existence  of  martial  law  in  Indiana;  for  I 
will  not  enter  again  upon  the  question,  whether  the  order  con- 
vening this  Commission,  and  the  other  ordering  the  accused  be- 
fore it  for  trial,  establish  martial  law.  It  was  not  convened 
until  these  men  were  imprisoned  for  the  offences  for  which  they 
are  now  on  trial.  These  offences  must,  of  course,  have  been 
committed,  if  ever,  before  they  were  arrested.  Then,  on  this 
hypothesis,  you  are  convened  to  try  tliem  for  offences  against 
inartial  law,  which  had  not  been  proclaimed,  and  did  not  exist 
until  after  their  arrest ! 

Suppose,  however,  that  there  has  at  any  time  existed  an  in- 
tention, on  the  part  of  the  President,  or  of  the  General  command- 
ing this  district,  to  declare  martial  law,  what  have  they,  or 
either  of  them,  done,  to  give  vitality  to  such  intention,  or  to  es- 
tablish it  as  a  practical  measure  of  public  administration  ? 
What  rules  have  they  laid  down  to  govern  your  action  in  its 
application?  What  crimes  have  they  said  shall  be  punished  by 
it?     And  how  shall  the^^  be  punished? 

Ko  general  in  the  world,  in  the  present  age,  or,  indeed,  in  any 
age,  since  the  dawn  of  civilization,  has  ever  yet  thought  of  es- 
tablishing a  martial  law,  the  penalties  whereof  should  be  con- 
fined to  kis  own  breast,  and  that  of  his  judges,  until  the  mo- 
ment they  should  fall  with  ruin  and  destruction  upon  its  miser- 
able subjects.  God  forbid  that  we  should  live  to  see  such  a 
system  put  into  operation  here!  All  writers  on  the  subject 
agree  that  there  must  always  be  some  notification  of  what  the 
commanding  general  intends  may  be  done,  and  what,  not  done, 
by  the  people  under  his  sway,  when  he  proclaims  martial  law. 
But  has  any  such  notification  gone  before  these  proceedings? 
Truly,  I  should  like  to  know  where  we  are,  and  what  we  are 
about.  Who  has  defined  the  offences  you  are  to  punish? 
What  is  to  be  the  rule  and  measure  of  your  punishments?  You 
are  to  select,  I  suppose,  definitions  and  penalties  at  pleasure, 
from  the  boundless  range  of  unlimited  power;  for,  it*  martial 
law  has  been  proclaimed,  and  is  in  force,  all  the  laws  of  the  land 
are  suspended  as  to  the  accused,  and  to  you,  and  to  all.  You 
are  under  no  obligation  to  go  to  them,  either  for  definitions  or 
penalties,  unless  they  have  been  adopted  by  the  military  power. 
But  that  power  has  adopted  nothing,  ordained  nothing,  defined 
nothing,  in  a  word,  has  given  us  no  definitions  of  offences,  and 
no  measures  of  punishment. 

It  was  not  thus  that  Wellington  administered  ma7iial  law; 
for  he  declares  that  the  commanding  general  is — mark  the 
words — "bound  to  lay  down  distinctly  the  rules,  and  regulations, 
and  limits,  according  to  which  his  will" — which  is  martial  law — 
"is  to  be  carried  out."     Hough's  Precedents  in  Mil.  Law,  p.  514. 


59 

And  so  our  own  illustrious  military  chieftain,  Lieutenant- 
General  Scott,  when  he  proclaimed  martial  law  in  Mexico,  and 
enforced  it,  prescribed  rules  for  its  administration.  Let  me 
show  you  how  he  proceeded  in  the  matter.  He  did  not  surprise 
the  people  of  Mexico,  though  they  were  aliens  and  enemies,  by 
announcing  the  advent  of  martial  laio,  in  the  first  instance,  by 
arrests  and  trials.  On  the  contrary,  he  published  a  general 
order,  in  which,  among  other  things,  he  said  : 

"1.  It  is  still  to  be  apprehended  that  many  grave  offenses  not 
provided  for  in  the  act  of  Congress  *  establishing  rules  and  arti- 
cles for  the  government  of  the  armies  of  the  United  States,'  ap- 
proved April  10,  1806,  may  be  again  committed — by,  or  upon, 
individuals  of  those  armies,  in  Mexico,  pending  the  existing  war 
between  the  two  republics.  Allusion  is  here  made  to  offenses, 
any  one  of  which,  if  committed  within  the  United  States  or  their 
organized  Territories,  would,  of  course,  be  tried  and  severely 
punished  by  the  ordinary  civil  courts  of  the  land. 

"  2.  Assassination,  murder,  poisoning,  rape,  or  the  attempt  to 
commit  either;  malicious  stabbing  or  maiming;  malicious  assault 
and  battery ;  robbery ;  theft;  the  wanton  desecration  of  churches, 
cemeteries,  or  other  religious  edifices  and  fixtures ;  the  interrup- 
tion of  religious  ceremonies;  and  the  destruction,  except  by 
order  of  a  superior  officer,  of  public  or  private  property,  are  such 
offenses." 

Then,  after  going  on  and  reciting  the  absence  of  any  provis- 
ion for  the  government  of  an  army  and  people  situated,  as  were 
the  army  of  the  United  States  and  the  people  of  Mexico,  to  each 
other,  in  our  military  code;  and  the  necessity  of  such  provision, 
and  that  it  was  found  in  martial  law  as  a  matter  of  necessity,  he 
proceeded  to  order : 

"  8.  From  the  same  supreme  necessity  mxtrtial  law  is  hereby 
declared  as  a  supplementary  code,  in  and  about  all  cities,  towns, 
camps,  posts,  hospitals,  and  other  places,  which  may  be  occupied 
by  any  part  of  the  forces  of  the  tFnited  States  in  Mexico,  and 
in  and  about  all  columns,  escorts,  convoys,  guards  and  detach- 
ments of  the  said  forces,  while  engaged  in  prosecuting  the  exist- 
ing war  in  and  against  the  said  republic,  and  while  remaining 
within  the  same. 

"9.  Accordingly  every  crime  enumerated  in  paragraph  No.  2 
above,  whether  committed: — 1.  By  an  inhabitant  of  Mexico, 
sojourner  or  traveler  therein,  upon  the  person  or  property  of 
any  individual  of  the  United  States'  forces,  retainer,  or  follower 
of  the  same.  2.  By  any  individual  of  the  said  forces,  retainer 
or  follower  of  the  same,  upon  the  person  or  property  of  any  in- 
habitant of  Mexico,  sojourner  or  traveler  therein ;  or,  3.  By  any 
individual  of  the  said  forces,  retainer  or  follower  of  the  same, 
upon  the  person  or  property  of  any  other  individual  of  the  said 
forces,  retainer  or  follower  of  the  same,  shall  be  duly  tried  and 
punished  under  the  said  supplementary  code. 


60  J.  w.  Gordon's  argument. 

"  10.  For  this  purpose  it  is  ordered  that  all  offenders  iti  the 
matters  aforesaid  shall  be  promptly  seized,  confined,  and  reported 
for  trial,  before  military  commissions^  to  be  duly  appointed,  as  fol- 
lows : 

*'ll.  Every  military  commission,  under  this  order,  will  be 
appointed,  governed  and  limited,  as  nearly  as  practicable,  as 
prescribed  by  the  65th,  66r,h,  67th,  and  97th  of  the  said  Rules 
and  Articles  of  War,  and  the  proceedings  of  such  commissionH 
will  be  duly  recorded  in  writing,  reviewed,  revised,  disapproved 
or  approved,  and  the  sentences  executed ;  all,  as  near  as  may 
be,  as  in  the  cases  of  the  proceedings  and  sentences  of  courts- 
martial;  provided,  that  no  military  commission  shall  try  any  case 
clearly  cognizable  by  any  courts-martial ;  and  provided,  also,  that 
no  sentence  of  a  military  commission  shall  be  put  in  execution 
against  any  individual  belonging  to  this  army;  which  may  not 
be,  according  to  the  nature  and  degree  of  the  offense,  as  estab- 
lished by  evidence,  in  conformity  with  known  punishments,  in 
like  cases,  in  some  one  of  the  States  of  the  United  States  of 
America." 

The  order  covers  many  more  topics,  and  presents  a  concise 
but  masterly  system  for  the  administration  of  martial  law,  well 
worthy  of  the  consideration  of  those  who  may  be  placed 
under  a  similar  necessity  to  that  w^hich  called  it  forth.  It  is 
manifestly  the  same  which,  nearly  a  year  before  its  date,  had  been 
presented  to  the  Secretary  of  War,  and  which  for  some  reason 
or  other,  that  functionary  had  rejecte<l,  as  I  have  already  shown. 
The  whole  order  will  be  found  in  Scott's  Mil.  Die,  art.  Martial 
Law,  p.  3b2. 

Now,  this  order  made  all  plain  both  for  the  army  and  the  peo- 
ple; and,  indeed,  for  the  commissions  sitting  under  it.  There 
was  certainty  as  to  the  crimes  punishable ;  and,  as  far  as  practica.- 
ble,  as  to  the  penalties  to  be  inflicted.  There  could  be  no  great 
surprises  in  either.  But  how  is  it  here,  to-day?  Are  w^e  not 
left  quite  out  at  sea  ?  And  are  we  not  thus  left  without  compa?s, 
or  chart,  or  guiding  star?  If  such  things  be  permitted,  where 
will  they  end?  I  will  not  pause  to  picture  the  wreck  that 
surely  awaits  us,  if  we  allow  ourselves  thus  to  drift  on,  over  the 
pathless  ocean  that  lies  before  us.  I  have  no  heart  to  think 
of  it. 

You  will  not,  therefore,  entertain  jurisdiction  of  this  cause. 
I  am  sure  you  will  not;  for  I  can  not  see  where  such  jurisdiction 
can  begin,  on  what  principles  it  can  rest,  or  how  it  can  be  justi- 
fied. You  ivill  not,  I  beg  leave  to  repeat,  entertain  jurisdiction, 
because — 

1.  Such  a  jurisdiction  is  at  war  with  the  principles  of  consti- 
tutional liberty  as  derived  by  us  from  Great  Britain,  and  em- 
bodied in  the  federal  constitution; 

2.  Such  a  jurisdiction  is  at  war  with  all  the  liberal  principles 


J.  w.  Gordon's  argument.  61 

of  tlie  gcfdd  old  laws  of  Father-land,  which  our  ancestors  brought 
over  with  them,  as  their  best  birth-right,  to  the  wilds  of  America ; 

3.  Such  a  jurisdiction  is  at  war  with  all  the  inspiring  facts  of 
our  early  history;  and  renders  worse  than  useless  the  noble  ex- 
amples of  the  men  of  1776; 

4.  Such  a  jurisdiction  is  at  war  with  the  very  nature  of  a  lim- 
ited constitutional  government ;  and  strikes  it  dead  as  soon  as 
we  permit  it  to  cross  our  national  threshhold; 

5.  Such  a  jurisdiction  nullifies  the  acts  of  Congress  as  well  as 
the  Constitution  ; 

6.  Such  a  jurisdiction,  in  Indiana,  is  at  war  with  the  procla- 
mations of  the  President;  and  would  make  him  the  author  of 
the  most  absurd  and  monstrous  folly,  as  well  as  of  the  grossest 
injustice; 

7.  Such  a  jurisdiction  outrages  the  facts  of  our  condition — 
our  courts,  both  Federal  and  State,  being  open — and  the  laws  of 
the  land  having  therein  free  course  and  full  power. 

In  order  to  sustain  such  a  jurisdiction  you  must  take  the  respon- 
sibility ;  for  the  general  commanding  has  issued  no  order  taking 
it  upon  himself;  and  the  President  is  still  more  distant  and  dis- 
inclined to  assume  it.  Why  should  yon  volunteer  to  do  this 
thing  ?  And  why  should  you  now  take  a  step  that  may,  in  the 
future,  be  referred  to  as  a  precedent  for  the  abolition  of  our  lib- 
erties ? 

Under  the  administration  of  good  honest  men,  almost  any- 
thing evil,  in  the  way  of  precedent,  may  remain  harmless. 
They  will  not  use  it ;  or,  if  they  do,  suiter  it  to  die  with  the  evil 
exigency  that  called  it  forth.  But  if  you  now  go  on  with  this 
business,  may  there  not  come  a  time,  when  the  land  shall  mourn 
for  its  lost  freedom — lost  through  the  evil  example  of  this  hour? 
Then  shall  our  children  curse  the  evil  day  in  which  the  bad  pre- 
cedent— a  fatal  departure  from  law  and  right — was  left  by  us 
for  their  ruin. 

Mr.  President  and  gentlemen,  I  have  done.  I  know  you  have 
each  defended  our  common  country  in  the  field ;  and,  had  it 
been  your  lot,  would  have  cheerfully  and  nobly  died  to  preserve 
its  liberty  and  constitution  from  overthrow  or  harm.  To-day, 
you  have  a  greater  duty  to  perform — a  far  more  difficult  one 
also.  Perform  it  according  to  the  constitution  and  laws — ac- 
cording to  justice  and  good  conscience,  as  I  trust  you  will,  and 
posterity,  more  indebted  to  this  day's  work  than  to  all  the  mili- 
tary achievements  of  the  war  in  which  we  are  now  engaged, 
will  rise  up  and  call  you  blessed. 

6 


Ji^:RGrTJls/L:Ell<TT 


OF   THE 


HON.  JAMES  A.  GARFIELD 

f  tt  the  ^,  <f .  ^tt|Htme  (Eouii 

i^jLTicii  6,  isee. 

In  the  matter  of  ex-parte  L.  P.  Milligan,  W.  A.  Bowles,  and 

Stephen  Horsey. 


Counsel  for  the  Petitioners,  Hon.  J.  £.  McDONALD,  Hon.  JAMES  A. 

OARFIEIiD,  Hon.  J.   S.   BLACK,    and   Hon.   DAVID  DUDIiKY 

FIELD.      For    tlie   United    States,    Hon.  B.  F.   BUTLiER, 

Hon.  JAS.  SPEED,  and  Hon.  HENRY  STANBERRY. 


Nullus  Liber  Homo  capiatur,  vel  imprisonetur,  aut  dissieeietur  aut  utligetur  aut  exuletur,  aut  ; 
aliquo  alio  modo  destruatur ;  nee  super  eum  ibimus,  nee  eum  in  carcere  mittemus,  nisi  per  legale  • 
judicium  Parium  suorum,  vel  per  Legem  Terrse  — Magna  Charta,  Cap.  XLVIII.  ' 


REPORTED   BY   D.   F.   MURPHY 


WASHINGTON  : 
JOSEPH  L.  PEARSON,  PRINTER, 

511  Ninth  St.,  near  Penn.  Avenue. 

1866. 


ARGUMENT. 


May  it  please  the  Court. 

In  the  months  of  September  and  October,  1864,  Lambdin  P.  Milligan, 
William  A.  Bowles,  and  Stephen  Horsey,  natives  of  the  United  States 
and  citizens  of  the  state  of  Indiana,  were  arrested  by  order  of  Alvin  P. 
HovEY,  Major  General  commanding  the  military  district  of  Indiana,  and 
on  the  21st  day  of  the  latter  month,  were  placed  on  trial  before  a  '*  Mili- 
tary Commission,"  convened  at  Indianapolis,  by  order  of  Gen.  Hovey, 
on  the  following  charges,  preferred  by  Maj.  Henry  L.  Burnett,  Judge 
Advocate  of  the  North- VVestern  Military  Department,  viz  : 

1.  *'  Conspiracy  against  the  government  of  the  United  States." 

2.  "  Affording  aid  and  comfort  to  rebels  against  the  government  of  the 
United  States." 

3.  '<  Inciting  insurrection." 

4.  **  Disloyal  practices." 

5.  '*  Violations  against  the  laws  of  war." 

The  commission,  overruling  the  objection  of  the  accused  against  its 
authority  to  try  them,  proceeded  with  the  trial,  pronounced  them  guilty, 
and  sentenced  them  to  death  by  hanging.  The  sentence  was  approved 
on  the  2d  day  of  May,  1865  ;  but  before  the  day  fixed  for  its  execution, 
the  President  of  the  United  States  commuted  it  to  imprisonment  for  life, 
and  the  prisoners  are  now  confined  in  the  penitentiary  of  Ohio. 

On  the  lOlh  day  of  the  same  month  they  filed  their  petition  in  the  Cir- 
cuit Court  of  the  United  States  for  the  District  of  Indiana,  setting  forth 
the  above  facts,  and  also  declaring  that  while  the  petitioners  were  held  in 
military  custody,  and  more  than  twenty  days  after  their  arrest,  a  Grand 
Jury  ot  the  Circuit  Court  of  the  United  States,  for  the  District  of  Indiana, 
was  convened  at  Indianapolis,  the  petitioners'  place  of  confinement,  and 
being  duly  impaneled,  charged,  and  sworn  for  said  district,  held  its  sit- 
tings, and  finally  adjourned,  without  having  found  any  bill  of  indictment, 
or  made  any  presentment  whatever  against  them  ;  that  at  no  time  had 
they  been  in  the  military  service  of  the  United  States,  or  in  any  way  con- 
nected with  the  land  or  naval  force,  or  the  militia  in  actual  service  ;  that 
they  had  not  been  within  the  limits  of  any  state  whose  citizens  were 
engaged  in  rebellion  against  the  United  States,  at  any  time  during  the 
war,  but  during  all  the  time  aforesaid,  and  for  twenty  years  last  passed, 
had  been  inhabitants,  residents,  and  citizens  of  Indiana.  The  petitioners' 
claim  to  be  discharged  from  the  military  custody  was  founded  upon  the 
provisions  of  an  act  of  Congress  of  March  3d,  1863,  entitled  **An  act  re- 
lative to  habeas  corpus,  and  regulating  judicial  proceedings  in  certain 
cases." 

On  hearing  the  petition,  the  opinions  of  the  judges  of  the  circuit  court 
were  opposed,  and  they  have  certified  to  this  court  for  its  decision  the 
following  questions,  viz: 

1.  On  the  facts  stated  in  said  petition  and  exhibits,  ought  a  writ  of 
habeas  corpus  to  be  issued  according  to  the  prayer  of  said  petition  ? 


2.  On  the  facts  stated  in  said  petition  and  exhibits,  ought  the  petitioners 
to  be  discharged  from  custody  as  in  said  petition  prayed  ? 

3.  Whether,  upon  the  facts  stated  in  said  petitition  and  exhibits,  the 
military  commission  mentioned  therein  had  jurisdiction  legally  to  try  and 
sentence  said  petitioners  in  manner  and  form  as  in  said  petition  and  exhibits 
is  stated. 

These  preliminary  proceedings  have  been  so  fully  stated  and  examined 
by  the  gentleman  who  opened  the  cause  (Judge  McDonald)  that  I  need 
not  dwell  upon  them  further. 

I  desire  to  say  in  the  outset  that  the  questions  now  before  this  court 
have  relation  only  to  constitutional  law,  and  neither  involve  the  guilt  or 
innocence  of  the  relators,  nor  the  motives  and  patriotism  of  the  officers  who 
tried  and  sentenced  them. 

I  trust  1  need  not  say  in  this  presence,  that  in  my  estimation  nothing  in 
the  calendar  of  infamy  can  be  more  abhorrent  than  the  crimes  with  which 
the  relators  were  charged;  nothing  that  more  fully  deserves  the  swift  ven- 
geance of  the  law,  and  the  execration  of  mankind.  But  the  questions  be- 
fore Your  Honors  are  not  personal.  They  reach  those  deep  foundations  of 
law  on  which  the  Republic  is  built;  and  in  ihv.'iT  proper  settlement  are 
involved  the  highest  interests  of  every  citizen. 

HAD  THE  MILITARY    COMMISSION    JURISDICTION  LEGALLY    TO  TRY  AND  SEN 
TENCE  THE  PGTITIQNERS  .? 

Upon  the  determination  of  this  question  the  whole  cause  rests. 

If  the  commission  had  such  jurisdiction,  the  petitioners  are  legally  impri- 
soned, and  should  not  be  discharged  from  custody;  nor  should  a  writ  of 
habeas  corpus  be  issued  in  answer  to  their  prayer. 

If  the  military  commission  had  not  jurisdiction,  the  trial  was  void,  the 
sentence  illegal,  and  should  not  be  further  executed. 

As  a  first  step  toward  reaching  an  answer  to  this  question,  I  affirm  that 
evei'y  citizen  of  the  United  States  is  under  the  dominion  of  law;  that  whether 
he  be  a  civilian^  a  soldier,  or  a  sailor^  the  Constitution  provides  for  him  a 
tribunal  before  which  he  may  be  proteded  if  innocent,  and  punished  if  guilty 
of  crime. 

In  the  iifih  article  of  the  amendments  to  the  Constitution  it  is  declared 
that: 

*'No  person  shall  be  held  to  answer  for  a  capital  or  otherwise  infamous 
crime,  unless  on  a  presentment  or  indictment  of  a  grand  jury,  except  in 
cases  arising  in  the  land  or  naval  forces,  or  in  the  militia  when  in  actual 
service,  in  time  of  war  or  public  danger  ;  nor  shall  any  person  be  sub- 
ject for  the  same  offence  to  be  twice  put  in  jeopardy  of  life  or  limb  ;  nor 
shall  he  be  compelled  in  any  criminal  case  to  be  witness  against  himself; 
nor  be  deprived  of  life,  liberty,  or  property  without  due  process  of  law  ; 
nor  shall  private  property  be  taken  for  public  use  without  just  compensa- 
tion." 

This  sweeping  provisiion  covers  every  person  under  the  jurisdic- 
tion of  the  Constitution.  To  the  general  rule  of  "^presentment  or  indict- 
ment of  a  grand  jury''"'  there  are  three  exceptions  :  First,  cases  arising 
in  the  land  forces  ;  second,  cases  arising  in  the  naval  forces  ;  third, 
cases  arising  in  the  militia  when  in  actual  service  in  time  of  war  or  public 
danger.  All  these  classes  are  covered  by  express  provisions  of  the  Con- 
stitution.    In  whatever  one  of  these  situations  an  American  citizen  may 


be  placed,  his  rights  are  clearly  defined,  and  a  remedy  is  provided  against 
oppression  and  injustice.  The  Constitution  establishes  the  Supreme  Court, 
and  empowers  Congress — 

**To  constitute  tribunals  inferior  to  the  supreme  court." 

''To  make  rules  for  the  government  of  the  land  and  naval  forces,  and 
*  To  provide  for  governing  such  part  of  the  militia  as  may  be  employed  in 
'the  service  of  the  United  States." 

No  other  tribunal  is  authorized  or  recognized  by  the  Constitution.  No 
other  is  established  by  the  laws  of  Congress. 

For  all  cases  not  arising  in  the  land  or  naval  forces.  Congress  has  amply 
provided  in  the  Judiciary  act  of  September  24,  1789,  and  the  acts  amend- 
atory thereof. 

For  all  cases  arising  in  the  naval  forces,  it  has  fully  provided  in  the  act 
of  March  2,  1799,  "for  the  government  of  the  navy  of  the  United  States," 
and  similar  subsequent  acts. 

But  since  the  opposing  counsel  do  not  claim  to  find  authority  for  the 
tribunal  before  which  the  petitioners  were  tried,  in  either  of  these  catego- 
ries, I  shall  proceed  to  examine,  somewhat  minutely,  the  limits  and  boun- 
daries of  the  military  department;  the  character  of  its  tribunals;  the 
classes  of  persons  who  come  within  its  jurisdiction;  and  the  defences 
which  the  law^  has  thrown  around  them. 

We  are  apt  to  regard  the  military  department  of  the  government  as  an 
organized  despotism  in  which  all  personal  rights  are  merged  in  the  will  of 
the  commander-in-chief.  But  that  department  has  definitely  marked 
boundaries,  and  all  its  members  are  not  only  controlled,  but  also  sacredly 
protected  by  definitely  prescribed  law.  The  first  law  of  the  revolutionary 
Congress,  passed  September  20,  1776,  touching  the  organization  of  the 
army,  provided  that  no  officer  or  soldier  should  be  kept  in  arrest  more 
than  eight  days  without  being  furnished  with  the  written  charges  and  spe- 
cifications against  him  ;  that  he  should  be  tried  at  as  early  a  day  as  possible 
by  a  regular  military  court,  whose  proceedings  were  regulated  by  law,  and 
that  no  sentence  should  be  carried  into  execution  till  the  full  record  of  the 
trial  had  been  submitted  to  Congress  or  to  the  commander-in-chief,  and 
his  or  their  direction  be  signified  thereon. 

From  year  to  year  Congress  has  added  new  safe-guards  to  protect  the 
rights  of  its  soldiers,  and  the  rules  and  articles  of  war  are  as  really  a  part  of 
the  laws  of  the  land  as  the  judiciary  act  or  the  act  establishing  the  Treasury 
department. 

If  the  humblest  private  soldier  in  the  army  be  wronged  by  his  command- 
ing officer,  he  may  demand  redress  by  sending  the  statement  of  his  griev- 
ance step  by  step  through  the  appointed  channels  till  it  reaches  the  Presi- 
dent or  Congress,  if  justice  be  not  done  him  sooner. 

The  main  boundary  line  between  the  civil  and  military  jurisdictions  is 
the  muster  into  service.  Before  that  act  the  citizen  is  subject  to  the  juris- 
diction of  the  civil  courts — after  it,  until  his  muster  out,  he  is  subject  to 
the  military  jurisdiction  in  all  matters  of  military  duty. 

This  line  has  been  carefully  surveyed  by  the  courts,  and  fixed  as  the 
lawful  boundary. 

They  do  not  regard  a  citizen  as  coming  under  the  jurisdiction  of  a  federal 
court-martial,  even  when  he  has  been  ordered  into  the  military  service 
by  the  governor  of  hi^  state,  on  requisition  of  the  President,  until  he  reaches 
the  place  of  general  rendezvous,  and  has  been  actually  mustered  into  the 


service  of  the  United  States.  On  this  point  1  cite  the  case  of  Mills  vs. 
Martin,  19  Johnson,  N.  Y.  Reports.  In  that  case,  a  militiaman,  called 
out  by  the  governor  of  the  state  of  New  York,  and  ordered  by  him  to  enter 
the  service  of  the  United  States,  on  a  requisition  of  the  President  for 
troops,  refused  to  obey  the  summons,  and  was  tried  by  a  federal  court-mar- 
tial for  disobedience  of  orders.  The  supreme  court  of  the  state  of  New 
York  decided  that  until  he  had  gone  to  the  place  of  general  rendezvous, 
and  had  been  regularly  enrolled,  and  mustered  into  the  national  militia,  he 
was  not  amenable  to  the  action  of  a  court-martial  composed  of  officers  of 
the  United  States. 

The  judge,  in  giving  his  opinion,  quoted  the  following  language  of  Mr. 
Justice  Washington,  of  the  Supreme  Court  of  the  United  States,  in  the 
case  of  Houston  vs.  Moore,  5  Wheaton  : 

"  From  this  brief  summary  of  the  laws,  it  would  seem  that  actual  ser- 

*  vice  was  considered  by  Congress  as  the  criterion  of  national  militia  ;  and 

*  that  the  service  did  not  commence  until  the  arrival  of  the  militia  at  the  place 
'  of  rendezvous.  That  is,  the  terminus  a  quo,  the  service,  the  pay,  and  sub- 
ejection  to  the  articles  of  war,  are  to  commence  and  continue." 

By  the  sixtieth  article  of  war,  the  military  jurisdiction  is  so  extended  as 
to  cover  those  persons  not  mustered  into  the  service,  but  necessaril}'  con- 
nected with  the  army.     It  provides  that — 

^'All  sutlers  and  retainers  to  the  camp,  and  all  persons  whatsoever, 
'serving  with  the  armies  of  the  United  States  in  the  field,  though  not  en- 

*  listed  soldiers,  are  to  be  subject  to  orders  according  to  the  rules  and 

*  articles  of  war." 

That  the  question  of  jurisdiction  might  not  be  doubtful,  it  was  thought 
necessary  to  provide  by  law  of  Congress  that  spies  should  be  subject  to 
trial  by  court-martial. 

As  the  law  stood  for  eighty-five  years  spies  were  described  as  ''  persons 
'  not  citizens  of,  or  owning  allegiance  to,  the  United  States,  who  shall   be 

*  found  lurking"  &c.  Not  until  after  the  great  rebellion  began  was  this 
law  so  amended  as  to  allow  the  punishment  by  court- martial  of  citizens  of 
ike  United  States  who  should  be  found  lurking  about  the  lines  of  our  army 
to  betray  it  to  the  enemy;  for  until  then,  be  it  said  to  the  honor  of  our 
people,  it  had  never  been  thought  possible  that  ai^y  American  citizen  would 
become  a  spy,  to  aid  the  enemies  of  the  republic  ;  but  in  1862  the  law  was 
so  amended  that  an  American  citizen,  if  found  lurking  about  the  lines  of 
the  army  as  a  spy,  in  time  of  war,  should  be  tried  by  a  court-martial  as 
though  he  were  a  spy  of  a  foreign  nation. 

It  is  evident,  therefore,  that  by  no  loose  and  general  construction  of  the 
law  can  citizens  be  held  amenable  to  military  tribunals,  whose  jurisdiction 
extends  only  to  persons  mustered  into  the  military  seivice,  and  such  other 
classes  of  persons  as  are,  by  express  provisions  ot  law,  made  subject  to  the 
rules  and  articles  of  war. 

But  even  within  their  proper  jurisdiction,  military  courts  are,  in  many 
important  particular  s,  subordinate  to  the  civil  courts.  This  is  acknowledged 
by  the  leading  authorities  on  this  subject. 

I  read  from  O'Brien's  Military  Law,  p.  222. 

After  discussing  the  general  relations   between  the   civil  and   military 

*  departments  of  the  government,  he  says  :  •■'  From  this  admitted  prin- 
'  ciple,  it  Would  seem  a  necessary  consequence  that  the  Supreme  Court  of 
'  the  United  States  has  an  inherent  power  over  all  military  tribunals,  of 


*  precisely  the  same  nature  as  that  which  it  exerts  and  exercises  over  infe- 

<  rior  courts  of  civil  jurisdiction.  Any  mandatory  or  prohibitory  writ, 
^  therefore,  emanating  from  the  Supreme  Court  of  the  United  States,  and 

<  addressed  to  a  court  martial,  would  demand  the  most  unhesitating  obedi- 
'  ence  on  the  part  of  the  latter.     Whether  in  the  absence  of  a  special  law 

*  to  that  effect,  the  same  obedience  is  due  to  a  writ  coming  from  a  circuit 
'  or  a  district  court  of  the  Union,  and  directed  to  a  court-martial  assembled 

*  in  the  district  or  circuit,  does  not  appear  to  be  so  clear.     A   military 

*  tribunal  would  doubtless  obey  such  a  writ.     As  to  stale  courts,  the  case 

*  is  very  different.  Military  courts  are  entirely  independent  of  them  ; 
'  their  powers  are  derived  from  a  distinct,  separate,  and  independent  source. 

*  In  regard  to  the  courts  of  the  United  States,  there  can  be  no  question. 

*  Each  individual  member  of  a  court-martial  is  also  liable  to  the  supreme 
'courts  of  civil  judicature,  not  only  for  any  abuse  of  power,  but  for  any 

<  illegal  proceedings  of  the  court,  if  he  has  votcid  for,  or  participated  in  the 

*  same." 

Again,  on  page  225,  the  same  author  says  : 

**The  authority  of  courts-martial  is  sometimes  extended  by   executive 

*  governments,  subjecting,  by  proclamation,  certain  districts  or  countries 
'  to  the  jurisdiction  of  martial  law  during  the  existence  of  a  rebellion.  But 
'  in  all  such  cases  a  court  martial  ought  to  be  fully  assured  that   the  war- 

*  rant  or  order  under  which  they  are  assembled  is  strictly  legal,  and  that 
'  the  prisoners  brought  before  them  were  actually  apprehended  in  the  par- 

*  ticular  district  or  country  which  may  have  been  subjected  to  martial  law, 
'  and  during  the  period  that  the  proclamation  was  actually  in  force.     Any 

*  error  in  these  particulars  would  render  their  whole  proceedings   illegal." 

In  further  vindication  of  my  last  proposition,  I  will  cite  a  few 


PRECEDENTS  FROM  ENGLISH  AND  AMERICAN  PRACTICE. 

1.  A  Lieutenant  Frye,  serving  in  the  West  Indies  in  1743  on  board  the 
Oxford,  a  British  man-of-war,  was  ordered  by  his  superior  officer  to  assist 
in  arresting  another  officer  and  bringing  him  on  board  the  ship  as  a 
prisoner.  The  lieutenant,  doubting  the  legality  of  the  order,  demanded 
what  he  had,  according  to  the  customs  of  the  naval  service,  a  right  to  de- 
mand, a  written  order  before  he  would  obey  the  command.  For  this  he 
was  put  under  arrest,  tried  by  a  naval  court-martial,  and  sentenced  to 
fifteen  years  imprisonment,  and  to  be  forever  debarred  from  serving  the 
King.  He  was  sent  to  England  to  be  imprisoned,  but  was  released  by  or- 
der of  the  Privy  Council.  In  1746  he  brought  an  action  before  a  civil 
court  against  the  president  of  the  court-martial,  Sir  Chandler  Ogle,  and 
damages  of  iSl,000  were  awarded  him  for  his  illegal  detention  and  sen- 
tence; and  the  learned  judge  informed  him  that  he  might  also  bring  his 
action  against  any  member  of  the  court-martial.  Rear  Admiral  Mayne 
and  Captain  Rentone,  who  were  members  of  the  court  that  tried  him, 
were  at  the  time,  when  damages  were  awarded  to  Lieut.  Frye,  sitting  on 
a  naval  court-martial  for  the  trial  of  Vice  Admiral  Lestock.  The  lieuten- 
ant proceeded  against  them,  and  they  were  arrested  by  a  writ  from  the 
C.  B.  The  order  of  arrest  was  served  upon  them  just  as  the  court-martial 
adjourned,  one  afternoon.  Its  members,  fifteen  in  number,  immediately 
re-assembled  and  passed  resolutions  declaring  it  a  great  insult  to  the  dig- 
nity of  the  naval  service  that  any  person,  however  high  in  civil  authority, 


8 

should  order  the  arre^^t  of  a  naval  officer  for  any  of  his  official  acts.  The 
Lord  Chief  Justice  (Sir  John  Willes)  immediately  ordered  the  arrest  of 
all  the  members  of  the  court,  who  signed  the  resolutions,  and  they  were 
arrested.  They  appealed  to  the  King,  who  was  very  indignant  at  the 
arrest.  The  judge,  however,  persevered  in  his  determination  to  maintain 
the  supremacy  of  civil  law,  and  after  two  months'  examination  and  inves- 
tigation of  the  cause  all  the  members  of  the  court-martial  signed  an  humble 
and  submissive  letter  of  apology,  begging  leave  to  withdraw  their  reso- 
lutions, in  order  to  put  an  end  to  further  proceedings.  When  the  Lord 
Chief  Justice  had  heard  the  letter  read  in  open  court  he  directed  that 
it  be  recorded  in  the  Remembrance  Office,  "to  the  end,"  as  he  said, 
*' that  the  present  and  future  ages  may  know  that  whosoever  set  them- 
^  selves  up  in  opposition  to  the  law,  or  think  themselves  above  the   law, 

*  will,  in  the  end,  find  themselves  mistaken."  The  history  of  the  case 
will  be  found  in  McArthur  on  Courts-martial,  Vol.  L,  pages  268-27L 
(See  also  London  Gazette  for  1745-6,  Library  of  Congress.) 

2.  I  beg  leave  to  cite  the  case  of  Wilson  vs.  McKenzie,  in  7  Hill,  New 
York  Supreme  Court  Reports,  page  95.  This  court  will  remember  the 
remarkable  mutiny  in  1842,  on  board  the  brig  Somers,  in  which  a  son  of 
the  then  Secretary  of  the  Treasury  of  the  United  States  was  tried  by  court- 
martial  for  mutiny,  and  executed  at  the  yard-arm.  It  was  proved  that  a 
mutiny  of  very  threatening  aspect  had  broken  out;  and  that  the  lives  of 
the  captain  and  his  officers  were  threatened  by  the  mutineers.  Among 
the  persons  arrested  was  the  plaintiff,  Wilson,  an  enlisted  sailor,  who  being 
supposed  to  be  in  the  conspiracy,  was  knocked  down  by  the  captain, 
ironed,  and  held  in  confinement  for  a  number  of  days.  When  the 
cruise  was  ended,  Wilson  brought  suit  against  the  captain  for  illegal  arrest 
and  imprisonment.  The  cause  was  tried  before  the  Supreme  Court  of 
New  York;  and  His  Honor,  Chief  Justice  Nelson,  delivered  the  opinion 
of  the  court.  He  says,  page  97  :  "  The  material  question  presented  in  this 
'case  is,  whether  the  common-law  courts  have  any  jurisdiction  of  per- 
'  sonal  wrongs  committed  by  a  superior  officer  of  the  navy  upon  a  subor- 
'  dinate,  while  at  sea  and  engaged  in  the  public  service." 

####*  #«  « 

"  Actions  of  trespass  for  injuries  to  the  person  have  been   frequently 

*  brought  and  sustained  in  the   common-law  courts   of   England,  against 

*  naval  as  well  as  military  commanders,  by  their  subordinates,  for  acts  done 

*  both  at  home  and  abroad  under  pretence  and  color  of  naval  and  military 
'  discipline. — (See  Wall  v.  McNamara,  and  Swinton  v.  Moller,  stated  in 
«  1  T.  R.,  536-7;  also  Mostyn  v.  Fabrizas,  Cowp.  161;  Warden  v. 
'  Bailey,  4  Taunl.,67;  4  Maule  and  Selw.,  400,  S. C;  and  Hannaford  v. 
«  Hunn,  2  Carr  and  Payne,  148.)" 

##  #  #  *##* 

'*  There  are  also  many  cases  in  the  books  where  actions  have  been  sus- 

*  tained  against  members  of  courts-martial,  naval   and  military,  who  have 

*  exceeded  their  authority  in  the  infliction  of  punishment." — "(See4Taunt., 

*  70-75,  and  the  cases  there  cited.)"         *  *  #  # 

^'  It  was  suggested  in  the  argument  that  inasmuch  as  he  (Wilson)  was  in 

*  the  service  of  the  United  States  when  the  acts  complained  of  were  done, 

*  the  courts  of  this  state  as  a  matter  of  comity  and  policy  should  decline 
'  to  take  jurisdiction  •  *  *  but  I  am  of  opinion  that  the  de- 


*  murrer  is  well  taken  and  that  the  plaintiff  (Wilson)  is  entitled  to  judg- 
*ment. " 

Ordered  accordingly. 

3.  As  a  clear  and  exhaustive  statement  of  the  relation  between  civil  and 
military  courts,  I  quote  from  an  opinion  of  this  court  in  the  case  of  Dynes 
V.  Hoover,  20  Howard,  82  : 

*'  With  the  sentences  ot  courts-martial  which  have  been  convened  regu- 

*  larly,  and  have  proceeded  legally,  and  by  which  punishments  are  directed, 

*  not  forbidden  by  law,  or  which  are  according  to  the  laws  and  customs  of 
'  the  sea,  civil  courts  have  nothins  to  do,  nor  are  they  in   any  way  alter- 

*  able   by  them.      If  it  were   otherwise,   the   civil   courts  would  virtually 

*  administer  the  rules  and  articles  of  war,  irrespective  of  those  to  whom 
'that  duty  and   obligation    has   been   confided    by  the  laws  of  the  United 

*  States,  from  whose  decisions  no  appeal  or  jurisdiction  of  any  kind   has 

*  been  given  to  the  civil   magistrate   or  civil   courts.     But  we  repeat,  if  a 

*  court-martial  has  no  jurisdiction  over  the  subject-matter  of  the   charge  it 

*  has  been  convened  to  try,  or  shall  inflict  a  punishment /or^iWm  by  the 

*  /aw,  though  its  sentence   shall   be  approved  by  the   officers   having  a  re- 

*  visory  power  of  it,  civil  courts  may,  on  an  action  by  a  party  aggrieved  by 

*  it,  inquire  into  the  want  of  the  court's  jurisdiction  and  give  him  redress. 

*  (Harman   v.  Tappenden,  1  East.,  555  ;  as  to  ministerial   officers,   Mar- 

*  shall's  case,  10  Cr.,  76;  Morrison  v.  Sloper,  Wells,  30;  Parton  v. 
'Williams,  B.  and  A.,  330;  and  as  to  justices  of  the  peace,  by  Ld.  T^n- 
<  terden,  in  Basten  v.  Carew,  3  B.  and  C,  653;  Mules  v.  Calcott,  6 
'Bins.,  85.) 

"  Such  is  the  law  of  England.  By  the  mutiny  acts,  courts-martial 
'  have  been  created  with  authority  to  try  those  who  are  a  part  of  the  army 
'or  navy  for  breaches  of  milit<iry  or  naval  duty.  It  has  been  repeatedly 
'  determined  that  the  sentences  of  those  courts  are  conclusive  in  any  action 
'brought  in  the  courts  of  common  law.  But  the  courts  of  common  law 
'  will  examine  whether  courts-martial  have  exceeded  the  jurisdiction  given 
'  them,  though  it  is  said,  '  not,  however,  after  the  sentence  has  been  rati- 
'  fied  and  carried  into  execution.'  (Grant  v.  Gould,  2  H.  Black,  69  ; 
'Ship  Bounty,  1  East.,  313;  Shalford's  case,  1  East.,  313;  Mann  v. 
'  Owen,  9  B.  and  C,  595  ;  in  the  matter  of  Poe,  5  B.  and  A.,  681,  on  a 
'  motion  for  a  prohibition.)" 

I  hold  it,  therefore,  established,  that  the  Supreme  Court  of  the  United 
States  may  inquire  into  the  question  of  jurisdiction  of  a  military  court  ; 
may  take  cognizance  of  extraordinary  punishment  inflicted  by  such  a  court 
not  warranted  by  law,  and  may  issue  writs  of  prohibition  or  give  such 
other  redress  as  the  case  may  require.  It  is  also  clear  that  the  Constitu- 
tion and  laws  of  the  United  States  have  carefully  provided  for  the  protec- 
tion of  individual  liberty  and  the  right  of  accused  persons  to  a  speedy  trial 
before  a  tribunal  established  and  regulated  by  law. 

The  petitioners  must,  as  I  have  already  shown,  be  placed  in  one  of  four 
categories.  First,  they  were  either  in  the  naval  service,  or  s-econd,  in  the 
military  service,  or  third,  belonged  to  the  militia  and  were  called  out  to 
serve  by  order  of  the  President  in  the  national  militia;  or  if  neither  of 
these  three,  nor  so  connected  with  them  as  to  be  placed  by  law  under  the 
naval  or  military  jurisdiction,  then  they  were  simply  civilians,  and  subject 
exclusively  to  the  jurisdiction  of  the  civil  courts.  It  is  set  forth  in  the  pe- 
tition, and  not  denied  by  the  opposing  counsel,  that  they  were  in  neither 
of  the  first  three  classes,  nor  connected  with  them.  They  must  therefore 
2 


10 

belong  to  the  fourth  class,  unless  a  fifth  should  be  added,  as  the  learned 
counsel  on  the  other  side  have  suggested,  and  it  be  declared  that  they  were 
prisoners  of  war  ;  but  of  that  I  shall  speak  hereafter. 

Under  such  circumstances  it  is  not  surprising  that  the  learned  counsel 
should  go  beyond  the  Constitution,  beyond  the  civil,  the  naval,  and  even 
the  military  law,  to  find  a  basis  on  which  they  may  rest  the  jurisdiction 
of  the  tribunal  before  which  the  petitioners  were  tried.  They  tell  us 
frankly  that  they  do  not  find  its  justification  either  in  the  civil  or  military 
laws  of  the  land. 

The  Honorable  Attorney  General  and  his  distinguished  colleague  (Gen. 
Butler)  declare  in  their  printed  brief,  pp.  4  and  5,  that — 

I.  *'A  MILITARY  COMMISSION  deHves  its  power  and  authority  wholly 
^from  martial  law;  and  by  that  law^  and  by  military  authority  only  are  its 
^proceedings  to  be  judged  or  reviewed;''^  that — 

II.  "  Martial  Law  is  the  will  of  the  commandiny  officer  of  an  armed  force, 
^  or  of  a  geographical  military  department  expressed  in  time  of  war,  within 
^  the  limits  of  his  military  jurisdiction,  as  necessity  demands  and  prudence 
'  dictates,  restrained  or  enlarged  by  the  orders  of  his  military  chief  or 
'  supreme  executive  ruler,^^  and  that  '^  the  officer  executing  martial  law  is 
*  at  the  same  time  supreme  legislator,  supreme  judge,  and  supreme  executive.'''^ 

To  give  any  color  of  plausibility  to  this  novel  proposition,  they  were 
compelled  not  only  to  ignore  the  Constitution,  but  to  declare  it  suspended; 
its  voice  drowned  in  the  thunders  of  war.  Accordingly,  with  consistent 
boldness,  they  declare  (Brief,  p.  13)  that  the  third,  fourth,  and  fifth  articles, 
of  amendments  *'are  all  peace  provisions  of  the  Constitution,  and  like  all  other 
'  conventional  and  legislative  laws  and  enactments  are  silent  Hnter  arma,^ 
^  when  '  salus populi  suprema  est  lex.''  "  Applying  these  doctrines  to  this 
cause  they  hold  that  from  the  5th  day  of  October,  1864, 1o  the  9th  of  May, 
1865,  martial  law  alone  existed  in  Indiana;  that  it  e^ilenced  not  only  the 
civil  courts,  but  all  the  laws  of  the  land,  and  even  the  Constitution  itself; 
and  during  that  silence  the  executor  of  martial  law  could  lay  his  hand  upon 
every  citizen,  could  not  only  suspend  the  writ  of  habeas  corpus,  but  could 
create  a  court  which  should  have  the  exclusive  jurisdiction  over  the 
citizen  to  try  him,  sentence  him,  and  put  him  to  death. 

We  have  already  seen  that  the  Congress  of  the  United  States  raises  and 
supports  armies,  provides  and  maintains  navies,  and  makes  the  rules  and 
regulations  for  the  government  of  both  ;  but  it  would  appear  from  the 
teachings  of  the  learned  counsel  on  the  other  side,  that  when  Congress 
has  done  all  these  things — when,  in  the  name  of  the  Republic,  and  in  order 
to  put  down  rebellion  and  restore  the  supremacy  of  law,  it  has  created  the 
grandest  army  that  ever  fought — the  power  thus  created  rises  above  its 
source  and  destroys  both  creator  and  law. 

They  would  have  us  believe  that  the  government  of  the  United  States 
has  evoked  a  spirit  which  it  cannot  lay — has  called  into  being  a  power 
which  at  once  destroyed  and  superseded  its  author,  and  rode,  in  uncon- 
trolled triumph,  over  citizen  and  court.  Congress  and  Constitution. 

All  this  mockery  is  uttered  before  this  august  court,  whose  every 
member  is  sworn  to  administer  the  law  in  accordance  with  the  Constitu- 
tion ! 

This  monstrous  assumption  I  shall  now  proceed  to  examine. 

martial  law  defined. 
And  now  what  is  martial  law  ?     It  is  a  new  term  to  American  jurispru- 


11 

dence  ;  and  I  congratulate  this  court  that  never  before  in  the  long  history 
of  this  republic  has  that  word  rung  out  its  lawless  echoes  in  this  sacred 
chamber. 

Mr.  Butler.  Did  not  the  decision  in  the  case  of  Luther  vs.  Borden 
have  something  to  do  with  martial  law  ? 

Mr.  Garfield.  It  was  not  the  subject  decided  by  the  court,  and  only 
remotely  analogous  to  this  case. 

The  claim  to  exercise  martial  law  in  that  case  was  under  the  old  charier 
of  Charles  11.  in  Rhode  Island,  and  not  under  the  Constitution. 

1.  Sir  Matthew  Hale,  in  his  History  of  the  Common  Law,  (Runnington's 
edition,  London,  1820,)  pp.  42-3,  says  : 

"  Touching  the  business  of  martial  law,  these  things  are  to  be  observed, 
^  viz  : 

"  First. — That  in  truth  and  reality  it  is  not  a  law  but  something  indulged 

<  rather  than  allowed   as  a  law  ;  the  necessity  of  government,  order,  and 

*  discipline  in  an  army  is  that  only  which  can  give  those  laws  a  counte- 
^  nance  quod  enim  necessiias  cogit  defendi. 

"  Secondly. — This  indulged  law  was  only  to  extend  to  members  of  the 

*  army,  or  to  those  of  the  opposed  army,  and  never  was  so  much  indulged 

*  as  intended  to  be  executed  or  exercised  upon  others,  for  others  who  had 

*  not  listed  under  the  army  had  no  color  or  reason  to  be  bound  by  military 
'  constitutions  applicable  only  to  the  army,  whereof  they  were  not  parts, 
'  but  they  were  to  be  ordered  and  governed  according  to  the  laws  to  which 

<  they  were  subject,  though  it  were  a  time  of  war. 

<'  Thirdly. — That  the  exercises  of  martial  law,  whereby  any  person  should 

*  lose  his  life,  or  member,  or  liberty,  may  not  be  permitted  in  time  of  peace 

*  when  the  king's  courts  are  open  for  all  persons  to  receive  justice  accord- 

*  ing  to  the  laws  of  the  land.     This  is  declared  in  the  Petition  of  Right,  3 

*  Car.,  1,  whereby   such  commissions  and  martial  law  were  repealed  and 

*  declared  to  be  contrary  to  law." 

2.  Blackstone  quotes  the  above  approvingly,  and  still  further  enforces  the 
same  doctrine.     Book  1,  pp.  413-4. 

3.  Wharton,  in  his  Law  Lexicon,  3d  edition,  p.  578,  says  : 

''  Martial  law  is  that  rule  of  action  which   is   imposed  by  the  military 

<  power.     It  has  no  place  in  the  institutions  of  this  country  (Great  Britain) 

*  unless  the  articles  of  war  established  under  the  military  acts  be  consid- 

*  ered  as  of  that  character.     The  prerogative   of  proclaiming  martial  law 

*  within  this  kingdom  is   destroyed,  as  it  would  appear,  by  the   Petition  of 

*  Right." 

4.  Lord  Wellington  defined  martial  law  as  *^The  will  of  the  command- 
'  ing  general  exercised  over  a  conquered  or  occupied  territory."  This  defi- 
nition was  given  by  him  in  his  dispatches  from  the  Peninsula,  (vol.  V.)  and 
subsequently  repeated  in  Parliament  in  1851.  In  the  same  debate.  Lords 
Cottenham  and  Campbell,  and  the  attorney  general.  Sir.  J.  Jervis,  declared 
that  '*  Martial  law  was  the  setting  aside  of  all  law,  and  acting  under  mil- 
'  itary  power,  in  circumstances  of  great  emergency — a  proceeding  which 
'  requires  to  be  followed  up  by  an  act  of  indemnity." 

This  is  the  kind  of  law  tD  which  the  gentlemen  appeal  to  establish  the 
validity  of  the  court  that  tried  the  petitioners. 

In  order  to  trace  the  history  and  exhibit  the  character  of  martial  law,  I 
shall  refer  to  several  leadinoj 


12 

PRECEDENTS  IN  ENGLISH  AND  AMERICAN  HISTORY. 

1.  The  Earl  of  Lancaster.  In  the  year  1322,  the  Earl  of  Lancaster  and 
the  Earl  of  Hereford  rebelled  against  the  authority  of  Edward  IL  They 
collected  an  army  so  large  that  Edward  was  compelled  to  raise  40,000 
men  to  withstand  them.  The  rebellious  eails  posted  their  forces  on  the 
Trent  and  the  armies  of  the  king  confronted  them.  They  fought  at  Bor- 
oughbridge  ;  the  insurgent  forces  were  overthrown  ;  Hereford  was  slain 
and  Lancaster  taken  in  arms  at  the  head  of  his  army,  and  amid  the  noise 
of  battle,  was  tried  by  a  court-martial,  sentenced  to  death,  and  executed. 
When  Edward  HL  came  into  power,  eight  years  later,  on  a  formal  petition 
presented  to  Parliament  by  Lancaster's  son,  setting  forth  the  facts,  the 
case  was  examined  and  a  law  was  enacted  reversing  the  attainder  and 
declaring  : 

*'  L  That  in  time  of  peace  no  man  ought  to  be  adjudged  to  death  for 
*  treason  or  any  other  offence  without  being  arraigned  and  held  to  answer. 
'  2.  That  regularly  when  the  king^s  courts  are  open  it  is  a  tiine  of  peace  in 
^judgment  q/'law  ;  and  3.  That  no  man  ought  to  be  sentenced  to  death,  by 
'  the  record  of  the  kino^,  without  his  legal  trial  per  pares.  ^^ 

Hale's  Pleas  of  the  Crown,  pp.  499,  500.     Hume,  vol.  1,  p.  1.59. 

I  call  attention  to  this  case  as  a  remarkable  illustration  of  some  of 
the  points  in  the  cause  before  us.  This  man  was  taken  in  arms  at  the 
head  of  his  army  and  in  battle.  He  was  immediately  tried  by  court-mar- 
tial and  executed  ;  but  it  was  declared,  in  the  decree  that  reversed  the  at- 
tainder, that  he  might  have  been  tried  by  the  courts  of  the  land,  and 
therefore,  for  the  purposes  of  his  trial,?/  was  a  time  of  peace,  that  he  might 
have  been  presented,  indicted,  and  regularly  tried  before  the  civil  tribunal, 
and  therefore  the  whole  proceeding  was  illegal.  So  carefully  was  the  line 
drawn  between  civil  and  martial  law  five  hundred  years  ago  ! 

2.  Sir  Thomas  Darnell.  He  was  arrested  in  1625  by  order  of  the  King 
for  refusing  to  pay  a  tax  which  he  regarded  as  illegal.  He  was  arrested 
and  imprisoned.  A  writ  of  habeas  corpus  was  prayed  for,  but  answer  was 
returned  by  the  court  that  he  had  been  arrested  by  special  order  of  the 
King,  and  that  was  held  to  be  a  sufficient  answer  to  the  petition.  Then 
the  great  cause  came  up  to  be  tried  in  Parliament,  whether  the  order  of  the 
King  was  sufficient  to  override  the  writ  of  habeas  corpus,  and  alter  a  long 
and  stormy  debate,  in  which  the  ablest  minds  in  England  were  engaged, 
the  Petition  of  Right,  of  1628,  received  the  sanction  of  the  King.  In  that 
statute  it  was  decreed  that  the  King  should  never  again  suspend  the  writ 
of  habeas  corpus ;  that  he  should  never  again  try  a  subject  by  military 
commission — and  since  that  day,  no  King  of  England  has  presumed  to 
usurp  that  high  prerogative  which  belongs  to  Parliament  alone. 

3.  For  the  purpose  of  citing  a  passage  in  the  argument  of  Counsellor 
Prynn,  I  call  attention  to  the  trial  of  Lord  Macguire,  before  the  Court  of 
King's  Bench,  in  1645.  The  record  of  the  case  will  be  found  in  4  State 
Trials,  pages  690-691. 

Lord  Macguire  was  the  leader  of  the  great  Irish  rebellion  of  1841,  during 
the  progress  of  which  more  than  100,000  men,  women,  and  children 
were  murdered  under  circumstances  of  the  greatest  brutality.  Lord  Mac- 
guire was  arrested  and  held  until  order  had  been  restored  ;  and  in  1645 
was  brought  before  the  King's  Bench  for  trial.  Mr.  Prynn,  counsel  tor 
the  crown,  published  his  argument  in  the  case,  in  order,  as  he  says, 
to  vindicate  the  laws  of  England  ^' in  trying  this  notorious  offender, 
'  guilty   of   the  horridest,    universalest   treason    and   rebellion   that   ever 


13 

*  broke  forth  in  Ireland  ;  and  that  in  a  time  of  open  war  both  in  Ireland 
<  and  England,  only  by  a  legal  iiidictment  and  indifferent  sworn  jury 
*of  honebt   and   lawful   freeholders,    according   to   the   known    laws    and 

*  statutes  of  the  realm  ;  not  in  a  court-martial,  or  any  other  new-minted 
'judicature,   bv   an   arbitrary,    summary,   illegal,    or  martial   proceeding, 

*  without  any  lawful  presentment,  indictment,  or  trial  by  a  sworn,  im- 

*  partial,  able  jury,  re.^olved  to  be  diametrically  contrary  to  the  fundamen- 

*  tal  laws,  customs,  great  charters,  statutes  of  the  realm,  and  inherent  liberty 

*  of  the  subject,  especially  in  time  of  peace  when  all  other  courts  of  justice 

*  are  open,  and  of  every  dangerous  consequence,  and  thereupon  especially 
'  prohibited  and  enacted  against  " 

After  giving  a  long  list  of  references  to  authorities,  he  goes  on  to  say 
that  the  law  is  vindicated  still  more  **  in  allowing  him  a  free,  honorable 

*  trial  upon  an  indictment,  first  found   upon  oath  by  the  grand  jury,  and 

*  then  suffering  him  to  take  not  only  his  particular  challenges  by  the  poll 

*  to  every  of  the  jurors  returned,  upon  ^voijre  dire,  (not  formerly  heard  of, 

*  yet  allowed  him,  as  reasonable,  to  take  away  all  color  of  partiality  or 

*  non-indifference  in  the  jurors,)  whereupon  every  juryman  was  examined 

*  before  he  was  sworn  of  the  jury,  whether  he  had  contributed  or  advanced 

*  any  moneys  upon  the  propositions  for  Ireland,  or  was  to  have  any  share 
*in  the  rebeK'^'  lands  in  Ireland,  by  act  of  Parliament,  or  otherwise.  But 
'likewise  in  permitting  him  to  take  his  peremptory  challenge  to  thirty-five 

*  of  the  two  juries  returned,   without  any  particular  cauee  alleged,  which 

*  liberty — our  laws  allowing  men,  in  favor  em  vifoe,  and  because  there  may 
'be  private  causes  of  just  exceptions  to  them,  known  to  the  prisoner,  not 
'  fit  to  be  revealed,  or  for  which  he  wants  present  proof,  and  that  in  case 
'of  high  treason,  as  w^ell  as  of  felony,  the  court  thought  just  and  equal  to 
'  allow  the  same  to  him,  though  a  notorious  Irish  r^bel." 

4.  The  Bill  of  Rights  of  1688.  The  house  of  Stuart  had  been  expelled 
and  William  had  succeeded  to  the  British  throne.  Great  disturbances 
had  arisen  in  the  realm  in  consequence  of  the  change  of  dynasty.  Plots  were 
formed  in  favor  of  James  in  all  parts  of  England.  The  King's  person  was 
unsafe  in  London.  He  informed  the  Lords  and  Commons  of  the  great  dan- 
gers that  threatened  the  Kingdom,  and  reminded  them  that  he  had  no  right 
to  declare  martial  law,  to  suspend  the  writ  oi  habeas  corpus,  or  to  seize  and 
imprison  his  subjects  on  suspicion  of  treason  or  intended  outbreak  against 
the  peace  of  the  realm.  He  laid  the  case  before  them  and  asked  their 
advice  and  assistance. 

In  answer,  Parliament  passed  the  celebrated  habeas  corpus  act.  Since 
that  day,  no  king  of  England  has  dared  to  suspend  the  writ.  It  is  only 
done  by  Parliament. 

/).  Governor  Wall.  In  the  year  1782,  Joseph  Wall,  governor  of  the 
British  colony  at  Goree,  in  Africa,  had  under  his  command  about  five  hun- 
dred British  soldiers.  Suspecting  a  mutiny  about  to  break  out  in  the  garrison, 
he  assen.bled  them  on  the  parade  ground,  held  a  hasty  consultation 
with  his  officers,  and  immediately  ordered  Benjamin  Armstrong,  a  private, 
and  supposed  ring-leader,  to  be  seized,  stripped,  tied  to  the  wheel  of  an 
artillery-carriage,  and  with  a  rope  one  inch  in  diameter  to  receive  eight 
hundred  lashes.  The  order  was  carried  into  execution,  and  Armstrong  died 
of  his  injuries.  Twenty  years  afterward  Governor  Wall  was  brought  before 
the  most  august  civil  tribunal  of  England  to  answer  for  the  murder  of  Arm- 
strong. Sir  Archibald  McDonald,  Lord  Chief  Bar't  of  the  Court  of  the  Ex- 
chequer, Sir  Soulden  Lawrence,  of  the  King's  Bench,  Sir  Giles  Rooke,  of 


14 

the  Common  Pleas,  constituted  the  court.  Wall's  counsel  claimed  that  he 
had  the  power  of  life  and  death  in  his  hands  in  time  of  mutiny  ;  that  the  ne- 
cessity of  the  case  authorized  him  to  suspend  the  usual  forms  of  law;  that 
as  governor  and  military  commander-in-chief  of  the  forces  at  Goree,  he  was 
the  sole  judge  of  the  necessities  of  the  case.  After  a  patient  hearing 
before  that  high  court,  he  was  found  guilty  of  murder,  was  sentenced  and 
executed. — (28  State  Trials,  p.  51;  see  also  Hough's  Mil.  Law,  pp. 
537-540.) 

I  now  ask  your  attention  to  precedents  in  our  own   colonial  history. 

6.  On  the  12th  day  of  June,  1775,  General  Gage,  the  commander  of  the 
British  forces,  declared  martial  law  in  Boston.  The  battles  of  Concord  and 
Lexington  had  been  fought  two  months  before.  The  colonial  army  was 
besieging  the  city  and  its  British  garrison.  It  was  but  five  days  before  the 
battle  of  Bunker  Hill.  Parliament  had,  in  the  previous  Februar}'-,  declared 
the  colonies  in  a  state  of  rebellion.  Yet,  by  the  common  consent  of  En- 
glish jurists.  General  Gage  violated  the  laws  of  England,  and  laid  himself 
li.ible  to  its  penalty,  when  he  declared  martial  law. 

This  position  is  sustained  in  the  opinion  of  Mr.  Justice  Woodbury,  in 
Luther  vs.  Borden,  7  Howard,  p.  65.  (For  a  history  of  the  transaction 
see  Annual  Regi-ter  for  1775,  p.  133.) 

7.  On  the  7th  day  of  November,  1775,  Lord  Dunmore,  declared  martial 
law  throuo-hout  the  commonwealth  of  Virofinia.  This  was  lotig  after  the 
battle  of  Bunker  Hill,  and  when  war  was  flaming  throughout  the  colonies  ; 
yet  he  was  denounced  by  the  Virginia  Assembly  for  having  assumed  a 
power  which  the  King  himself  dared  not  exercise,  as  it  "  annuls  the  law 
of  the  land,  and  introduces  the  most  execrable  of  all  systems,  martial  law." 
Mr.  Justice  Woodbury  declares  (7  Howard,  p.  65)  the  act  of  Lord  Dun- 
more  unwarranted  by  British  law. 

8.  The  practice  of  our  Revolutionary  fathers  on  this  subject  is  most  in- 
structive. Their  conduct  throughout  the  great  struggle  for  Independence 
was  equally  marked  by  respect  for  civil  law,  and  jealousy  of  martial  law. 
Indeed,  it  was  one  of  the  leading  grievances  set  forth  in  the  Declaration 
of  Independence,  that  the  King  of  Great  Britain  had  '*  affected  to  render 
the  military  independent  of,  and  superior  to  the  civil  power;"  and  though 
Washington  was  clothed  with  almost  dictatorial  powers,  he  did  not  pre- 
sume to  override  the  civil  law,  or  disregard  the  orders  of  the  courts,  ex- 
cept by  express  authority  of  Congress  or  the  states. 

In  his  file  of  general  orders,  covering  a  period  of  five  years,  there  are 
but  four  instances  in  which  civilians  appear  to  have  been  tried  by  a  mili- 
tary court,  and  all  these  trials  were  expressly  authorized  by  resolutions  of 
Congress. 

In  the  autumn  of  1777,  the  gloomiest  period  of  the  war,  a  powerful 
hostile  army  landed  at  Chesapeake  bay,  for  the  purpose  of  invading 
Maryland  and  Pennsylvania.  It  was  feared  that  the  disloyal  inhabitants 
along  his  line  of  march  would  give  such  aid  and  information  to  the  British 
commander  as  to  imperil  the  safety  of  our  cause. 

Congress  resolved  "That  the  executive  authorities  of  Pennsylvania  and 
<  Maryland  be  requested  to  cause  all  persons  within  their  respective  states, 

*  notoriously  disaffected,  to  be  forthwith  apprehended,  disarmed,  and  secured 

*  till  such  time  as  the  respective  states  think  they  can  be  released  without 

*  injury  to  the  common  cause." 

The  governor  authorized  the  arrests,  and  many  disloyal  citizens  were 
taken  into  custody  by  Washington's  officers,   who  refused  to  answer  the 


15 

writ  o{  habeas  corpus  which  a  civil  court  issued  for  the  release  of  the  pris- 
oners. Very  soon  afterwards  the  Pennsylvania  legislature  passed  a  law 
indemnifying  the  governor  and  the  military  authorities,  and  allowing  a 
similar  course  to  be  pursued  thereafter  on  recommendation  of  Congress  or 
the  commanding  officer  of  the  army.  But  this  law  gave  authority  only  to 
arrest  and  hold — not  to  try;  and  the  act  was  to  remain  in  force  only  till 
the  end  of  the  next  session  of  the  general  assembly.  So  careful  were  our 
fathers  to  recognise  the  supremacy  of  civil  law,  and  to  resist  all  preten- 
sions of  the  authority  of  martial  law  ! 

9.  I  pass  next  to  notice  an  event  that  occurred  under  the  Confeder- 
ation, before  the  Constitution  was  adopted  :  I  refer  to  Shay's  rebellion 
in  1787 — that  rebellion  which  was  mentioned  by  Hamilton  in  the  Feder- 
alist as  a  proof  that  w^e  needed  a  strong  central  government  to  preserve 
our  liberties.  During  all  that  disturbance  there  was  no  declaration 
of  martial  law,  and  the  habeas  corpus  was  only  suspended  for  a  limited 
time  and  with  very  careful  restrictions.  Governor  Bowdoin's  order  to 
General  Lincoln,  on  the  19th  of  Januarv,  1787,  was  in  these  words  : 
"  Consider  yourself  in  all  your  military  offensive  operations  constantly  as 
<  under  the  direction  of  the  civil  officer,  save  where  any  armed  force  shall 
'  appear  to  oppose  you,  marching  to  execute  these  orders." 

10.  I  refer  next  to  a  case  under  the  Constitution,  the  rebellion  of  1793 
in  Western  Pennsylvania.  President  VVashington  did  not  march  with  his 
troops  until  the  judge  of  the  United  States  district  court  had  certified  that 
the  marshal  was  unable  to  execute  his  warrants.  Though  the  parties  were 
tried  for  treason,  all  the  arrests  were  made  by  the  authority  ol"  the  civil 
officers.  The  orders  of  the  Secretary  of  War  stated  that  "  the  object  of 
the  expedition  was  to  assist  the  marshal  of  the  district  to  make  prisoners." 
Every  movement  was  made  under  the  direction  of  the  civil  authorities. 
So  anxious  was  Washington  on  this  subject  that  he  gave  his  orders  with 
the  greatest  care,  and  went  in  person  to  see  that  they  were  carefully 
executed.      He  issued  orders  declaring  that  "  the  army  should  not  consider 

*  themselves  as  judges  or  executioners  of  the  laws,  but  only  as   employed 

*  to  support  the  proper  authorities  in  the  execution  of  the  laws." 

11.  I  next  refer  to  an  incident  connected  with  the  Burr  conspiracy  in 
1807.  The  first  developments  of  the  plot  were  exceedingly  alarming. 
Reports  were  forwarded  to  President  Jefferson,  and  by  him  communicated 
confidentially  to  the  Senate  of  the  United  States,  with  his  recommenda- 
tion that  Congress  pass  a  law  authorizing  the  suspension,  for  a  limited 
period,  of  the  writ  of  habeas  corpus.  On  the  26th  day  of  January  the  Sen- 
ate, by  a  unanimous  vote,  passed  a  bill  authorizing  the  suspension  of  the 
writ  for  three  months,  in  cases  of  persons  who  were  charged  under  oath 
with  treason  or  misprision  of  treason.  Thus  carefully  limited  and  restricted, 
the  bill  was  sent,  under  the  seal  of  secrecy,  to  the  House  of  Representa- 
tives. When  it  was  read,  the  doors  were  immediately  opened  ;  a  motion 
was  made  to  reject  the  bill,  that  it  might  not  even  leach  its  first  reading  ; 
and  after  a  very  able  debate  of  five  days,  it  was  rejected  by  a  vote  of  113 
to  19. 

Not  content,  even,  with  that  decided  expression  of  sentiment,  two  weeks 
later,  on  the  17lh  of  February,  a  resolution  was  introduced  into  the  House 
ordering  the  Committee  on  the  Judiciary  "  to  bring  in  a  bill  more  thoroughly 
to  protect  the  rights  of  American  citizens  from  arrest  and  imprisonment 
under  color  of  authority  of  the  President  of  the  United  States."  After 
a  very  searching  and   able   debate,   it  was   concluded   that  existing  laws 


16 

afforded  ample  protection  ;  but  so  anxious  were  the  representatives  of  the 
people  to  place  the  safety  of  the  citizen  beyond  the  reach  of  doubt,  that 
the  resolution  came  within  two  votes  of  passing  in  the  House.  The  vote 
stood  58  yeas  to  60  nays  ;  and  that,  too,  in  the  very  midst  of  the  threatened 
conspiracy.  The  full  history  of  this  legislative  action  will  be  found  in 
Benton's  Abridgment  of  Congressional  Debates,  vol.  1,  pp.  504  to  542. 

I  will  remark  in  this  connection,  that  though  President  Jeff*erson  recom- 
mended the  passage  of  the  act  referred  to,  yet,  in  his  correspondence,  vol. 
2,  pp.  274  and  291,  he  subsequently  expressed  his  opinion  that  it  was 
unwise  even  in  insurrection  to  suspend  the  writ  of  habeas  corpus. 

So  jealous  were  our  people  of  any  infringement  of  the  rights  of  the  citizen 
to  the  j)rivileges  of  the  writ,  that  in  the  very  midst  of  the  dangers  at  New 
Orleans,  General  Wilkinson  was  brought  before  a  court  there  for  having 
neglected  promptly  to  obey  a  writ  of  habeas  corpus. — (See  Annual  Regis- 
ter for  1807,  page  84.) 

12.  I  call  the  attention  of  the  court  for  a  moment  to  the  discussion  in 
Congress,  in  relation  to  the  action  of  General  Jackson,  in  1815,  at  New 
Orler.ns.  it  will  be  remembered  that  notwithstanding  flagrant  war  was 
blazing  around  New  Orleans  when  tlie  general  declared  martial  law,  yet 
it  was  held  that  he  had  violated  the  sanctity  of  the  courts,  and  he  w^as 
fined  accordingly.  For  a  full  record  of  the  law  in  the  case,  see  3  Martin's 
Lon.  Rep.,  O.  S.,  520. 

In  1842  a  bill  was  introduced  into  Congress  to  reimburse  him  for  the 
fine.     The  debate  was  very  able  and  thorough. 

James  Buchanan,  then  a  member  of  Congress,  spoke  in  its  favor,  and 
no  one  will  doubt  his  willingness  to  put  the  conduct  of  Jackson  on  the 
most  favorable  ground  possible.      I  quote  from  his  speech: 

"  It  had  never  been   contended  on  this  floor  that  a  military  commander 

*  possessed  the  power  under  the  Constitution  of  the  United  States  to  declare 
'  martial  law.      No  such  principle   had   ever    been    asserted    on    this  (the 

*  Democratic)   side  of  the  House.      He  had  then  expressly  declared  (and 

*  the  published  report  of   the  debate,   which   he  had  recently   examined 

*  would  justify  him  in  this  assertion)  that  we  did  not  contend,  strictly  speak- 
^  ing,  that  General  Jackson  had  any  constitutional  right  to  declare  martial 
Maw  at  New  Orleans;  but  that,  as  this  exercise  of  power  w^as  the  only 
'  means  of  saving  the  city  from  capture  by  the  enemy,  he  stood  amply 
^justified  before  his  country  for  the  act.    We  placed  the  argument  not  upon 

*  the  ground  of  strict  constitutional  right,  but  of  such  an  overruling  neces- 

*  sity  as  left  General  Jackson  no  alternative  between  the  establishment  of 

*  martial  law,  or  the  sacrifice  of  New  Orleans  to  the  rapine  and  lust  of  the 

*  British  soldiery.     On  this  ground  Mr.  B.  had   planted  himself  firmly  at 

*  the  last  session  of  Congress  ;  and  here  he  intended  to  remain." — Benion^s 
AbridprmfTit  of  Debates^  vol.  14,  page  628. 

All  the  leading  members  took  the  same  ground.  It  was  not  attempted 
to  justify,  but  to  palliate  and  excuse  the  conduct  of  Jackson. 

13.  I  call  attention  next  to  the  opinions  of  our  own  courts  in  regard  to 
martial  law  and  the  suspension  of  the  writ  o{  habeas  corpus^  and  first  read 
from  the  opinion  of  Chief  Ju-tice  Marshall,  4  Cranch,  page  101: 

"  If  at  any  time  the  public  safety  should  require  the  suspension  of  the 
'  powers  vested  in  the  courts  of  the  United  States,  it  is  for  the  legislature 
'  to  say  so.  The  question  depends  on  political  considerations  on  which 
^  the  legislature  is  to  decide .     Until   the   legislative  will  be  expressed  the 

*  court  can  only  see  its  duty  and  obey  the  laws." 


17 

I  cite  also  the  opinion  of  the  late'Chief  Justice  in  ex  parte  Merryman, 
9  American  Law  Register,  page  596,  in  which  it  was  decided  that  the 
legislative  authority  alone  could  suspend  the  writ  of  habeas  corpus.  This 
decision  was  rendered  in  1862,  in  the  Maryland  circuit. 

I  shall  conclude  these  citations  from  our  own  judicial  history,  by  read- 
ing a  few  paragraphs  from  the  opinion  of  Mr.  Justice  Woodbury,  in  Luther 
V.  Borden,  7  Howard,  page  62.  The  passage  1  shall  cite  loses  none  of  its 
force  from  the  fact  that  it  is  a  part  of  a  dissenting  opinion — for  the  princi- 
ples involved  in  it  were  not  strictly  in  issue,  nor  were  they  denied  by  the 
court.     After  stating  his  positions  at  length,  the  learned  justice  says: 

"  For  convincing  reasons  like  these,  in  every  country  which  makes  any 

<  claim  to  political  or  civil  liberty,  '  martial  law  '  as  here  attempted  and  as 

*  once  practiced  in  J^^ngland  against  her   own   people    has  been   expressly 

*  forbidden  there  for  near  two  centuries,  as  well  as  by  the  principles  of  every 

*  other  free  constitutional  government. — (1  Hallam's  Const.  History,  420.) 

*  And  it  would  be  not  a  little  extraordinary,  if  the  spirit  of  our  institutions, 

*  both  state  and  national,  was  not  much  stronger  than  in  England  against  the 

*  unlimited  exercise  of  martial  law  over  a  whole  people,  whether  attempted 
'  by  any  chief  magistrate  or  even  by  a  legislature." 

*'  My  impression  is  that  a   state  of  war,  whether  foreign  or  domestic, 

*  may  exist,  in  the  great  perils  of  which  it  is  competent  under  its  rights 

*  and  on  principles  of  national  law  for  a  commanding  officer  ot  troops  under 

*  the  controlling  government  to  extend  certain  rights  of  war,  not  only  over 

<  his  camp,    but  its  environs,  and  the  near  field  of  his  military  operations. 

*  (6  American  Archives,  186  )   But  no  further  nor  wider.  (Johnson  v.  Davis 

*  et  al.,  3  Martin,  530,  551.)     On  this  rested  the  justification  of  one  of  the 

*  great  commanders  of  this  country  and  of  the  age  in  a  transaction  so  well 

*  known  at  New  Orleans.     But  in  civil  strife  they  are  not  to  extend  beyond 

*  the  place  where  insurrection  exists',  (3  Martin,  551,)  nor  to  portions  of 
•the  state   remote  from  the  scene  of  military  operations,  nor  after  the  re- 

*  sistance  is  over,  nor  to  persons  not   connected  with  it,   (Grant  v.  Gould 

*  et  al.,  2  Hen.  Bl.,  69,)  nor  even  within  the  scene  can  they  extend  to 
^  the  person  or  property  of  citizens  against  whom  no  probable  cause  exists 
'which  may  justify  it,  (Sutton  v.  Johnston,  1  D.  &  E.,  549.)" — Ibid,  p. 
83. 

14.  I  cannot  leave  this  branch  of  my  argument  without  fortifying  my 
position  by  the  authority  of  two  of  the  greatest  names  on  the  roll  of  British 
jurists.  To  enable  me  to  do  this,  I  call  attention  to  the  celebrated  trial  of 
the  Rev.  John  Smith,  missionary  at  Demarara,  in  British  Guiana.  In  the 
year  1823  a  rebellion  broke  out  in  Demarara,  extending  over  some  fifty 
plantations.  The  governor  of  the  district  immediately  declared  martial 
law.  A  number  of  the  insurgents  were  killed  and  the  rebellion  was 
crushed.  It  was  alleged  that  the  Rev.  John  Smith,  a  missionary,  sent 
out  by  the  London  Missionary  Society,  had  been  an  aider  and  abettor  of  the 
rebellion.  A  court-martial  was  appointed,  and  in  order  to  give  it  the  sem- 
blance of  civil  law  the  governor-general  appointed  the  chief  justice  of  the 
district  as  a  staff  officer,  and  then  detailed  him  as  president  of  the  court  to 
try  the  accused.  All  the  other  members  of  the  court  were  military  men, 
and  he  was  made  a  military  officer  for  the  special  occasion.  Missionary 
Smith  was  tried,  found  guilty,  and  sentenced  to  be  hung.  The  proceedings 
came  to  the  notice  o^  Parliament,  and  were  made  the  subject  of  inquiry 
and  debate.  Smith  died  in  prison  before  the  day  of  execution,  but  the 
3 


18 

trial  gave  rise  to  one  of  the  ablest  debates  of  the  century,  in  which  the 
principles  involved  in  the  cause  now  before  this  court  were  fully  discussed. 
Lord  Broughann  and  Sir  James  Mackintosh  were  among  the  speakers.  In 
the  course  of  his  speech  Lord  Brougham  said  : 

*'  No  such  thing  as  martial  law  is  recognized  in  Great  Britain,  and  courts 

*  founded  on  proclamations  of  martial  law  are  wholly  unknown.      Suppose 

*  I  am  ready  to  admit  that,  on  the  pressure  of  a  great   necessity,  such  as 

*  invasion  or  rebellion,  when  there  is  no  time  for  the   slow   and   cumbrous 

*  proceedings  of  the  civil  law,  a  proclamation  may  justifiably  be  issued  for 

*  excluding  the  ordinary  tribunals  and   directing  that  offences   should   be 

<  tried  by  a  military  court,  such  a  proceeding  might  be  justified  by  neces- 

*  sity,  but  it  could  rest  on  that  alone.  Created  by  necessity,  necessity 
'  must  limit  its  continuance.     It  would   be   the   worst   of  all   conceivable 

*  grievances,  it  would  be  a  calamity   unspeakable,   if  the   w^hole   law   and 

*  constitution  of  England  were  suspended  one  hour  longer  than  the   most 

<  imperious  necessity  demanded.     1  know  that   the   proclamation  of  mar- 

*  tial  law  renders  every  man  liable  to  be  treated  as  a  soldier.  But  ihe 
'  instant  the  necessity  ceases,  that  instant  the  state  of  soldiership  ought  to 
'  cease,  and  the  rights,  with  the  relations  of  civil  life,  to  be  restored.'''' 

The  speech  of  Sir  James  Mackintosh,  who  was  perhaps  the  very  first 
English  jurist  of  his  day,  is  in  itself  a  magazine  of  leo;al  learning,  and 
treats  so  fully  and  exhaustively  the  subject  of  martial  law  and  military 
tribunals  that  I  shall  take  the  liberty  of  quoting  a  lengthy  passage.  I  do 
this  with  less  hesitation  because  I  have  found  no  argument  so  full  and 
complete,  and  no  authority  more  perfectly  applicable  to  the  cause  before 
this  court.  I  quote  from  the  London  edition,  1851,  Mackintosh's  Mis- 
cellaneous Works,  p.  734: 

*^  Sir,  the  impregnable  speech  of  my  learned  friend   [Lord   Brougham] 

*  has  left  me  little  if  anything  to  say.      The  only  principle  on  which   the 

*  law  of  England  tolerates  what  is  called   *  martial  law  '  is  necessity.     Its 

*  introduction  can  be  justified  only  by  necessity;  its  continuance   requires 

<  precisely  the  same  justification  of  necessity,  and  if  it  survives  the  ne- 
'  cessity,  in  which  alone  it  rests,  for  a  single  minute,  it  becomes  instantly  a 

*  mere  exercise  of  lawless  violence.     When  foreign  invasion  or  civil  war 

*  renders  it  impossible  for  courts  of  law  to  sit,  or  to  enforce  the  execution 

*  of  their  judgments,  it  becomes  necessary  to  find  some  rude  substitute  lor 

<  them,  and  to  employ  for  that  purpose  the  military,  which  is  the  only  re- 

*  maining  force  in  the  community." 

I  desire  to  call  particular  attention  to  the  next  paragraph,  which  lays 
down  the  chief  condition  that  can  justify  martial  law  and  also  marks  the 
boundary  between  martial  and  civil  law. 

*»  While  the  laws  are  silenced  by  the  noise  of  arms,  the  rulers  of  the  armed 
'  force  must  punish,  as  equitably  as  they  can,  those  crimes  which  threaten 

<  their  own  safety  and  that  of  society,  but  no  longer  ;  every  moment  be- 
'  yond  is  usurpation,  ^s  soon  as  the  laws  can  act,  every  other  mode  of 
^  punishing  supposed  crimes  is  itself  an  enormous  crime.     U  argument  be 

<  not  enough  on   this  subject — if,  indeed,  the  mere   statement  be   not  the 

<  evidence  of  i's  own  truth — I  appeal  to  the  highest  and  most  venerable 
'  authority  known  to  our  law." 

He  proceeds  to  quote  Sir  Matthew  Hale  on  martial  law  and  cites 
the  case  of  the  Earl  of  Lancaster,  to  which  I  have  already  referred,  and 
then  declares  :  .... 

''  No  other  doctrine  has  ever  been  maintained  in  this  country  since  the 


19 

*  solemn  parliamentary  condemnation  of  the  usurpations  of  Charles  I. ,  which 
'  he  was  himself  compelled   to  sanction  in  the  Petition  of  Right.     In  none 

*  of  the  revolutions  or  rebellions  which   have  since   occurred  has  martial 

*  law  been  exercised,  however  much,  in  some  of  them,  the  necessity  might 

*  seem  to  exist.     Even  in  those  most  deplorable  of  all  commotions  which 

*  tore  Ireland  in  pieces  in  the  last  years  of  the  eighteenth  century,  in  the 

*  midst  of  ferocious  revolt  and  cruel  punishment,  at  the  very  moment  of 

*  legalizing  these  martial  jurisdictions  in  1799,  the  very  Irish  statute,  which 

*  was  passed  for  that  purpose,  did  homage  to  the  ancient  and  fundamental 

*  principles  of  the  law  in  the  very  act  of  departing  from  them.     The  Irish 

*  statute,  39  George  III.,  chap.  3,  after  reciting  *  that  martial  law  had  been 
'  successfully  exercised  to  the  restoration  of  peace,  so  far  as  to  permit  the 

*  course  of  the  common  law  partially  to  take  place,  but  that  the  rebellion 

*  continued  to  rage  in  considerable  parts  of  the  kingdom,  whereby  it  has 

*  become  necessary  for  Parliament  to  interpose,'  goes  on  to   enable  the 

*  Lord  Lieutenant  '  to  punish  rebels  by  courts  martial.'  This  statute  is  the 
'  most  positive  declaration  ihdit  iv here  the  common  law  can  be  exercised  in 

*  some  parts  of  the  country,  martial  law  cannot  be  established  in  others,  though 

*  rebel/ion  actually  prevails  in  those  others,  without  an  extraordinary  inter- 
'position  of  the  supreme  legislative  authority  itself  ^^ 

"  I  have  already  quoted  from  Sir  Matthew  Hale  his  position  respecting 

*  the  two- fold  operation  of  martial  law,  as  it  affects  the  army  of  the  power 

*  which  exercises  it,  and  as  it  acts  against  the  army  of  the  enemy.     That 

*  great  judge,  happily  unused  to  standing  armies,  and  reasonably  preju- 
'  diced  against  military  jurisdiction,  does  not  pursue  his  distinction  through 

*  all  its  consequences,  and  asigns  a  ground  for  the  whole,  which  will  sup- 

*  port  only  one  of  its  parts.      '  The  necessity  of  order  and  discipline  in  an 

*  army'  is,  according  to  him,  the  reason  why    the  law  tolerates  this  de- 

*  parture  from  its  most  valuable  rules  ;  but  this  necessity  only  justifies  the 

*  exercise  of  martial  law  over  the  army  of  our  own  state.  One  part  of  it  has 
'  since  been  annually  taken  out  of  the  common  law  and  provided  for  by 
'  the  mutiny  act,  which  subjects  the  military  offences  of  soldiers  only  to 

*  punishment  by  military  courts  even  in  time  of  peace.      Hence  we  may 

*  be  said  annually  to  legalize  military  law  ;  which,  however,  differs  essen- 

*  tially  from  martial  law,  in  being  confined  to  offences  against  military  dis- 
'  cipline,  and  in  not  extending  to  any  persons  but  those  who  are  members 

*  of  the  army.     Martial  law  exercised  against  enemies   or  rebels  cannot 

*  depend  on  the  same  principle,  for  it  is  certainly  not  intended  to  enforce 

*  or  preserve  discipline  among  them.     It  seems  to  me  to  be  only  a  more 

*  regular  and  convenient  mode  of  exercising  the  right  to  kill  in  war — a  right 
'  originating  in  self-defence,  and  limited  to  those  cases  where  such  killing 
<  is  necessary  as  the  means  of  insuring  that  end.     Martial  law  put  in  force 

*  against  rebels  can  only  be  excused  as  a  mode  of  more  deliberately  and  equi- 

*  table  selecting  the  persons  from  whom  quarter  ought  to  be  withheld  in  a 

*  case  where  all  have  forfeited  their  claim  to  it.   It  i§  nothing  more  than  a  sort 

*  of  better  regulated  decimation,  founded  upon  choice,  instead  of  chance, 
'  in  order  to  provide  for  the  safety  of  the  conquerors,  without  the  horrors 
'  of  undistinguished  slaughter;  it  is  justifiable  only  where  it  is  an  act  of 

*  mercy.     Thus  the  matter  stands  by  the  law  of  nations.     But  by  the  law 

*  of  England  it  cannot  be  exercised  except  where  the  jurisdiction  of  courts 

*  of  justice  is  interrupted  by  violence. 

"Did   this   necessity  exist  at  Demarara  on  the  13th  of  October,  1823  > 
'  Was  it  on  that  day  impossible   for  the  courts  of  law  to  try  offences  ?     It 


20 

'  is  clear  that,  if  the   case  be   tried  by  the  law  of  England,  and  unless  an 

*  affirmative  answer  can  be  given  to  these  questions  of  fact,  the  court-mar- 
<  tial  had  no  legal  power  to  try  Mr.  Smith." 

After  presenting  arguments  to  show  that  a  declaration  of  martial  law  was 
not  necessary,  the  learned  jurist  continues  : 

''For  j-ix  weeks,  then,  before  the  court-martial  was  assembled,  and  for 

*  twelve  weeks  before  that  court  pronounced  sentence  of  death  on  Mr. 
'  Smith,  all  hostility  had  ceased,  no  necessity  for   their  existence   can  be 

*  pretended,   and   every  act  which   they  did  was   an   open   and  deliberate 

*  defiance  of  the  law  of  England. 

"  Where,  then,  are  we  to  look  for  any  color   of  law  in   these   proceed- 

*  ings  ?     Do  they  derive  it  from  the  Dutch  law  ?     I  have  diligently  exam- 

*  ined  the  Roman  law,  which  is  the  foundation  of  that  system,  and  the 
'  writings  of  those  most  eminent  jurists  who  have  contributed  so  much  to 

*  the  reputation  of  Holland.  I  can  find  in  them  no  trace  of  any  such  prin- 
»  ciple  as  martial  law.      Military  law,  indeed,  is  clearly  defined  ;   and  pro- 

*  vision  is  made  for  the  punishment  by  military  judges  of  the  purely  mili- 

*  tary  offences  of  soldiers.      But  to  any  power  of  extending  military  juris- 

*  diction  over  those  who  are  not  soldiers,  there  is  not  an  allusion.      1  will 

*  not  furnish  a  subject  for  the  pleasantries   of  my  right   honorable   friend, 

*  or   tempt   him    into  a  repetition  of  his  former  innumerable  blunders,  by 

*  naming  the  greatest  of  these  jurists,  (B^nkershoek.)  lest   his   date,  his 

*  occupation,  and  his   rank   might  be   again  mistaken  ;  and  the  venerable 

*  president  of  the  supreme  court  of  Holland  might  be  once  more  called  a 
'  a  'clerk  of  the  States-General.'     '  Persecutio  militis,^  says  that  learned 

*  person,  ^ periinet  ad  judicem  miltarem  quando  delictum  sit  militare,  et  ad 
^judicem  communem  quando  delictum  sit  commune.'' 

"Far  from  supposing  it  to  be  possible,  that   those  who  were  not  soldiers 

*  could  ever  be  tiiable  by  military  courts  for  crimes  not  military,  he  ex- 

*  pressly  declares  the  law  and  practice  of  the  United  Provinces  to  be,  that 
'  even  soldiers  are  amenable,  for  ordinary  offences  against  society,  to  the 

*  court  of  Holland  and  Friesland,  of  which  he  was  long  the  chief.  The 
'  law  of  Holland,  therefore,  does  not  justify  this  trial  by  martial  law. 
'  Nothing  remains  but  some  law  of  the  colony  itself.  Where  is  it  }  It  is 
'  not  alleged  or  alluded  to  in  any  part  of  this  trial.     We  have  heard  noth- 

*  ing  of  it  this  evening.  So  unwilling  was  I  to  believe  that  this  court- 
'  martial  would  dare  to  act  without  some  pretence  of  legal  authority,  that 
'  I  suspected  an  authority  for  martial  law  would  be  dug  out  ot"  some  daik 
'  corner  of  a  Guiana  ordinance.  I  knew  it  was  neither  in  the  law  of  Eng- 
'  land  nor  in  that  of  Holland  ;  and  I  now  believe  that  it  does  not  exist  even 
'  in  the  law  of  Demarara.  The  silence  of  those  who  are  interested  in 
'  producing  it,  is  not  my  only  reason  for  this  belief.  I  happen  to  have  seen 
'  the  instructions  of  the  States-General  to  their  governor  of  Demarara,  in 
'  November,  1792,  probably  the  last  ever  issued  to  such  an  officer  by  that 
'  illustrious  and  memorable  assembly.  They  speak  at  large  of  councils  of 
'  war,  both  for  consultation  and  for  judicature.  They  authorize  these 
'  councils  to  try  the  military  offences  of  soldiers  ;  and  therefore,  by  an 
'  inference  which  is  stronger  than  silence,  authorize  us  to  conclude  that 
'  the  governor  had  no  power  to  subject  those  who  were  not  soldiers  to  their 

*  authority.  The  result,  then,  is,  that  the  law  of  Holland  does  not  allow 
'  what  is  called  '  martial  law'  in  any  case  ;  and  that  the  law  of  England 
'  does  not  allow  it  without  a  necessity,  which  did  not  exist  in  the  case  of 

*  Mr.  Smith.     If,  then,  martial  law  is  not  to  be  justified  by  the  law  of 


21 

*  England,  or  by  the  law  of  Holland,  or  by  the  law  of  Demarara,  what  is 

*  there   to  hinder  me  from  afiu-ming  that  the  members  of  this  pretended 

<  court  had  no  more  right  to  try  Mr.  Smith   than  any  other  fifteen  men  on 

*  the  face  of  the  earth — that  their  acts  were  nullities,  and  their  meeting  a 

*  conspiracy — that  their  lenience  was  a  direction  to  commit  a  crime — that 

*  if  it  had  been  obeyed,  it  would  not  have  been  an  execution  but  a  murder, 

<  and  that  they,  and  all  other  i)arties  engaged  in  it,  must  have  answered 

<  for  it  with  their  lives." 

May  it  please  the  court,  many  more  such  precedents  as  I  have  already 
fited,  might  be  added  to  the  list,  but  it  is  unnecessary.  They  all  teach 
the  same  le^son. 

They  enable  us  to  trace  from  its  far  off  source,  the  progress  and  devel- 
opment of  Anglo-Saxon  liberty  ;  its  innumerable  conflicts  with  irrespon- 
sible power ;  its  victories,  dearly  bought,  but  always  won — victories  which 
have  crowned  with  immortal  honors  the  institutions  of  England,  and  left 
their  indelible  impress  npon  the  Anglo-Saxon  mind.  These  principles 
our  fathers  brought  with  them  to  the  new  world,  and  guarded  with  sleep- 
less-vigilance and  religious  devotion.  In  its  darkest  hour  of  trial,  during 
the  late  rebellion,  the  republic  did  not  forget  them.  So  con  pletely  have 
they  been  impressed  on  the  minds  of  American  lawyers;  so  thoroughly 
have  they  been  ingrained  into  the  very  fibre  of  American  character,  that 
notwithstanding  the  citizens  of  eleven  states  went  off  into  wild  rebellion, 
broke  their  oaths  of  allegiance  to  the  Constitution,  and  levied  war  against 
their  country,  yet  with  all  their  crimes  upon  them,  there  was  still  in  the 
minds  of  those  men,  during  all  the  struggle,  so  deep  and  enduring  an 
impression  on  this  great  subject,  that  even  during  their  rebellion,  the  courts 
of  the  Southern  states  adjudicated  causes  like  the  one  now  before  you, 
in  favor  of  the  civil  law  and  against  courts-martial  established  under  mil- 
itary authority  for  the  trial  of  citizens.  In  Texas,  Mississippi,  Virginia, 
and  other  insurgent  states,  by  the  order  of  the  rebel  President,  the  writ  of 
habeas  corpus  was  suspended,  martial  law  was  declared,  and  provost  mar- 
shals were  appointed  to  administer  military  authority.  But  when  civilians, 
arrested  by  military  authority,  petitioned  for  release  by  writ  of  habeas 
corpus,  in  every  case,  save  one,  the  writ  was  granted,  and  it  was  decided 
that  there  could  be  no  suspension  of  the  writ  or  declaration  of  martial  law 
by  the  executive,   or  by  any  other  than  the  supreme  legislative  authority. 

The  men  who  once  stood  high  in  the  list  of  American  lawyers,  such 
as  Alexander  H.  Stephens,  Albert  Pike,  and  Gen.  Houston,  wrote  letters 
and  made  speeches  against  the  practice  until  it  was  abandoned.  In  the 
year  1862  the  commander-in-chief  of  the  rebel  armies,  compelled,  by 
the  force  of  public  sentiment,  published  a  general  order,  disclaiming  any 
right  or  claim  of  right  to  establish  martial  law  or  suspend  ttie  writ  o{  habeas 
corpus  without  the  authority  of  the  rebel  congress. 

1  said  there  was  one  exceptional  instance.  A  judge  of  the  supreme 
court  of  Texas,  in  the  first  excitement  of  the  rebellion,  refused  to  issue  a 
writ  of  habeas  corpus  to  relea>e  from  military  arrest  a  citizen  charged  with 
disloyalty  to  the  rebel  government.  He  wrote  his  opinion  and  delivered 
it  ;  but  he  was  so  much  agitated  when  he  found  that  he  stood  alone  among 
judges  on  that  great  question  of  human  rights  tb.at  he  went  to  the  book  of 
records,  in  which  his  opinion  was  recorded,  and  with  his  own  hand  plucked 
the  leaves  from  the  volume  and  destroyed  them.  He  also  destroyed  the 
original  copy  that  it  might  never  be  put  in  type  ;  and  having  destroyed 
everything  but  the  lemcmbrance  of  it,  ended  his  life  by  suicide.     I  believe 


22 

he  alono  among  rebel  judges,  ventured  to  recognize  martial  law,  declared 
without  legislative  authority. 

The  spirit  of  liberty  and  law  is  well  embodied  in  this  one  sentence  of 
Delolme  (Vol.  I.,  p.  455):  ^'The  arbitrary  discretion  of  any  man  is 
*  the  law  of  tyrant- — it  is  always  unknown,  it  is  ditTerent  in  different  men, 
'  it  is  casual,  and  depends  upon  constitution,  temper,  and  passion  ;  in  the 
'  best  it  is  oftentimes  caprice,  in  the  worst  it  is  every  vice,  folly,  and  pas- 
'  sion  to  which  human  nature  is  liable." 

And  yet,  if  this  military  commission  could  legally  try  these  petitioners, 
its  authority  rested  only  upon  the  will  of  a  single  man.  It' it  had  the  right 
to  try  these  petitioners,  it  had  the  right  to  try  any  civilian  in  the  United 
States;  it  had  the  right  to  try  Your  Honors,  for  you  are  civilians.  The 
learned  gentlemen  tell  us  that  necessity  justifies  martial  law.  But  what 
is  the  nature  of  that  necessity.  If,  at  this  moment,  Lee,  with  his  rebel 
army  at  one  end  of  Pennsylvania  avenue,  and  Grant,  with  the  army  of  the 
Union  at  the  other,  with  hostile  banners  and  roaring  guns,  were  approaching 
this  Capitol,  the  sacred  seat  of  justice  and  law,  I  have  no  doubt  they  would 
expel  Your  Honors  from  the  bench,  and  the  Senate  and  House  of  Repre- 
sentatives from  their  halls.  The  jurisdiction  of  battle  would  supersede 
the  jurisdiction  of  law.  Ttiis  court  would  be  silenced  by  the  thunders 
of  war. 

If  an  earthquake  should  shake  the  City  of  Washington,  and  tumble  this 
Capitol  in  ruins  about  us,  it  would  drive  Your  Honors  from  the  bench,  and 
<"or  the  time,  volcanic  law  would  supersede  the  Constitution. 

It  the  supreme  court  of  Herculane«un  or  Pompeii  had  been  in  session 
when  the  fiery  ruin  overwhelmed  those  cities,  its  authority  would  have 
been  suddenly  usurped  and  overthrown,  but  I  question  the  propriety  of 
calling  that  law,  which,  in  its  very  nature,  is  a  destruction  or  &uspension 
of  all  law. 

From  this  review  of  the  history  and  character  of  martial  law  I  am  war- 
ranted by  the  uniform  precedents  of  English  law  for  many  centuries  ;  by 
the  uniform  practice  of  our  fathers  during  the  colonial  and  revolutionary  pe- 
riods ;  by  the  unanimous  decisions  of  our  courts,  and  by  the  teachings  of 
our  statesmen,  to  coLclude — 

1.  Thai  ike  Executive  has  no  authojiiy  to  fiuspend  the  writ  of  habeas 
corpuSy  or  to  declare  or  administer  martial  law  ;  much  less  has  any  military 
subordinate  of  the  Executive  such  authority;  but  these  high  functions  belong 
exclusmely  to  the  supreme  legislative  authority  of  the  nation. 

2.  77mt  -if  in  the  presence  of  great  and  sudden  danger,  arid  under  the 
pressure  of  overwhelming  ntcessity^  the  chief  Executive  should,  without 
legislative  warrant,  suspend  the  writ  of  habeas  corpus  or  declare  martial 
law,  he  must  not   look  to  the  courts  J  or  justification,  but   to  the  legislature; 

for  indemnification. 

3.  Thai  no  such  necessity  ca?i  be  pleaded  to  Justify  the  trial  of  a  civilian 
by  a  military  tribunal  when  the  legally  authorized  civil  courts  are  open  and 
unobstructed. 

It  will  be  observed  that  in  this  discussion  I  have  not  alluded  to  the  legal 
status  of  citizens  of  those  states  which  were  declared,  both  by  the  legisla- 
tive and  executive  departments  of  the  government,  to  be  in  rebellion 
again>t  the  United  States. 

It  has  been  fully  settled,  not  only  by  the  other  coordinate  branches  of 
the  government,  but  by  this  court,  that  those  states  constitute  d  a  belligerent 
govejnment  de  facto,  against  which  the  federal  government  might  proceed 


23 

with  all  the  appliances  of  war,  and  might  extend  absolute  military  juris- 
diction over  every  foot  of  rebel  territory. 

But  the  military  jurisdiction  thus  conferred  by  the  government  does  not 
extend  beyond  the  territory  of  the  rebellious  states,  except  where  the  tide 
of  war  actually  sweeps  beyond  those  limits  and  by  its  flaming  presence 
makes  it  impossible  for  the  civil  courts  to  exercise  their  functions. 

The  case  before  Your  Honors  comes  under  neither  of  these  conditions, 
hence,  the  laws  of  war  are  inapplicable  to  it. 

The  military  commission,  under  our  government,  is  of  recent  origin. 
It  was  instituted  by  Gen.  Scott,  in  Mexico,  to  enable  him,  in  the  absence 
of  any  civil  authority,  to  punish  Mexican  and  American  citizens  for  of- 
fences not  provided  for  in  the  rules  and  articles  of  war  The  purpose  and 
character  of  a  military  commission  may  be  seen  from  his  celebrated  order 
No.  20,  published  at  Tampico.  It  was  no  tribunal  with  authority  to  punish, 
but  merely  a  committee  appointed  to  examine  an  offender  and  advise  the 
commanding  general  what  punishment  to  inflict.  It  is  a  rude  substitute 
for  a  court  of  justice,  in  the  absence  of  civil  law. 

Even  our  own  military  authorities,  who  have  given  so  much  prominence 
to  these  commissions,  do  not  claim  for  them  the  character  of  tribunals  es- 
tablished by  law. 

In  his  "Digest  of  Opinions"  for  1866,  the  Judge  Advocate  General 
says,  page  131  : 

"  Military  commissions  have  grown  out  of  the  necessities  of  the  service, 
'  but  their  powers  have  not  been  defined  nor  their  mode  of  proceeding 
*  regulated  by  any  statute  law." 

Again,  p.  133  : 

"  In  a  military  department  the  military  commission  is  a  substitute  for 
^  the  ordinary  state  or  United  States  court,  when  the  Intier  is  closed  by  ihe. 
'  exigencies  of  war,  or  is  without  the  jurisdiction  of  the  offence  committed." 

The  only  ground  on  which  the  learned  counsel  attempt  to  establish  the 
authority  of  the  military  commisi«ion  to  try  the  petitioners,  is  that  of  the 
necessity  of  the  case.  I  answer  there  was  no  yuch  necessity.  Neither 
the  Constitution  nor  Congress  recognized  it.  I  point  to  the  Constitution 
as  an  arsenal,  stored  with  ample  powers  to  meet  every  emergency  of 
national  life.  No  higher  test  of  its  completeness  can  be  imagined  than 
has  been  afforded  by  the  great  rebellion,  which  dissolved  the  municipal 
governments  of  eleven  states,  and  consolidated  them  into  a  gigantic  traitor- 
ous government  de  facio,  inspired  with  the  desperate  purpcs-e  of  destroy- 
ing the  government  of  the  United  States. 

From  the  beginning  of  the  rebellion  to  its  close,  Congress,  by  its  legisla- 
tion, kept  pace  with  the  necessities  of  the  nation.  In  sixteen  carefully 
considered  laws,  the  national  legislature  undertook  to  provide  lor  every 
contingency,  and  arm  the  executive  at  every  point  with  the  .'•olemn  sanc- 
tion of  law.  Observe  how  perfectly  the  case  of  the  petitioners  was  cov- 
ered by  the  provisions  of  law. 

The  first  charge  against  them  was  "conspiracy  against  the  government 
of  the  United  States.'" 

In  the  act  approved  July  31,  1861,  that  very  crime  was  fully  defined, 
and  placed  within  the  jurisdiction  of  the  district  and  circuit  courts  of  the 
United  States. 

Charge  2  :  "  Affording  aid  and  comfort  to  the  rebels  against  the  author- 
ity of  the  United  States." 

In  the  act  approved  July   17,  1862,  this  crime  is  set  forth  in  the  very 


24 

words  of  the  charge,  and  it  is  provided  that  *^on  conviction  before  any 

*  court  of  the  United  States,   having  jurisdiction  thereof,  the  offender  shall 

*  be  punished  by  a  fine  not  exceeding  ten  thousand  dollars,  and  by  impris- 
^onment  not  less  than  six  months,  nor  exceeding  five  years." 

Charge  3  :  "  Inciting  insurrection." 

On  pages  191  to  202,  Brightly 's  Digest,  Vol.  2,  there  is  compiled  from 
ten  separate  acts,  a  chapter  of  sixty-four  sections  on  insurrection,  setting 
forth  in  the  fullest  manner  possible,  every  mode  by  which  citizens  may 
aid  in  insurrection,  and  providing  for  their  trial  and  punishment  by  the 
regularly  ordained  courts  of  the  United  States. 

Charge  4  :  '^  Disloyal  practices." 

The  meaning  of  this  charge  can  only  be  found  in  the  specifications  under 
it,  which  consists  in  discouraging  enlistments  and  making  preparations  to 
resist  a  draft  designed  to  increase  the  army  of  the  United  States.  These 
offences  are  fully  defined  in  the  thirty-third  section  of  the  act  of  March  3, 
1863,  ''for  enrolling  and  calling  out  the  national  forces,"  and  in  the 
twelfth  section  of  the  act  of  February  24,  1864,  amendatory  thereof.  The 
provost  marshal  is  authorized  to  arrest  such  offenders,  but  he  must  deliver 
them  over  for  trial  to  the  civil  authorities.  Their  trial  and  punishment 
are  expressly  placed  in  the  jurisdiction  of  the  district  and  circuit  courts 
of  the  United  States. 

Charge  5  :  "  Violation  of  the  laws  of  war ;"  which,  according  to  the 
specifications,  consisted  of  an  attempt,  through  a  secret  organization,  to 
give  aid  and  comfort  to  rebels.  This  crime  is  amply  provided  for  in  the 
laws  referred  to  in  relation  to  the  second  charge. 

But  Congress  did  far  more  than  to  provide  for  a  case  like  this.  Through- 
out the  eleven  rebellious  states  it  clothed  the  military  department  with 
supreme  power  and  authority.  State  constitutions  and  laws,  the  decrees  and 
edicts  of  courts  were  all  superseded  by  the  laws  of  war. 

Even  in  states  not  in  rebellion,  but  where  treason  had  a  foot-hold,  and 
hostile  collisions  were  likely  to  occur.  Congress  authorized  the  suspension 
of  the  writ  of  habeas  corpus,  and  directed  the  army  to  keep  the  peace. 

But  Congress  went  further  still,  and  authorized  the  President,  during 
the  rebellion,  whenever,  in  his  judgment,  the  public  safety  should  require 
it,  to  suspend  the  privilege,  writ  of  habeas  corpus,  in  any  state  or  territory 
of  the  United  States,  and  order  the  arrest  of  any  persons  whom  he  might 
believe  dangerous  to  the  safety  of  the  republic,  and  hold  them  till  the  civil 
authorities  could  examine  into  the  nature  of  their  crimes.  But  this  act  of 
March  3,  1863,  gave  no  authority  to  try  the  person  by  any  military  tribu- 
nal, and  it  commanded  judges  of  the  circuit  and  districts  courts  of  the 
United. States,  whenever  the  grand  jury  had  adjourned  its  sessions,  and 
found  no  indictment  against  such  persons,  to  order  their  immediate  dis- 
charge from  arrest.  All  these  capacious  powers  were  conferred  upon  the 
military  department,  but  there  is  no  law  on  the  Statute  Book  in  which  the 
tribunal  that  tried  the  petitioners  can  find  the  least  recognition. 

1  wish  to  call  the  attention  of  Your  Honors  to  a  circumstance  showing 
the  sentiment  of  the  House  of  Representatives  of  the  Thirty-Eighth  Con- 
gress on  this  subject.  Near  the  close  of  the  last  Congress,  when  the 
miscellaneous  a[)propriation  bill,  which  authorized  the  disbursement  of 
several  millions  of  dollars  for  the  civil  expenditures  of  the  government, 
was  under  discussion,  the  House  of  Representatives  having  observed,  with 
alarm,  the  growing  tendency  to  break  down  the  barriers  of  law,  and  desir- 


25 

ing  to  protect  the  rights  of  citizens  as  well  as  to  preserve  the  Union, 
added  to  the   appropriation  bill  the  following  section  : 

^^  And  be  it  jurlher  enacted,  That  no  person  shall  be  tried  by  court-mar- 
'  tial  or  military  commission  in   any  state  or  territory  where  the  courts  of 

*  the  United  States  are  open,  except  persons  actually  mustered  or  commis- 
'  sioned  or  appointed  in  the  military  or  naval  service  of  the  United  States, 

*  or  rebel  enem.ies  charged  with  being  spies. '- 

It  was  debated  at  length  in  the  Senate,  and  though  almost  every  Senator 
acknowledged  its  justice,  yet,  as  the  nation  was  then  in  the  very  mid-whirl 
and  fury  of  the  war,  it  was  feared  that  the  Executive  might  thereby  be 
crippled,  and  the  section  was  stricken  out.  The  bill  came  back  to  the 
House  ;  conferences  were  held  upon  it,  and  finally,  in  the  last  hour  of  the 
session,  the  House  defiberately  determined  that,  important  as  the  bill  was 
to  the  interests  of  the  country,  they  preferred  it  should  not  become  a  law 
if  that  section  were  stricken  out.  I  beg  leave  to  read  some  passages  from 
the  remarks  of  one  of  the  noblest,  ablest,  and  most  patriotic  men  that  have 
honored  this  nation  during  the  war — that  great  man  so  lately  taken  from 
us,  Henry  Winter  Davis,  of  Maryland.  After  reporting  the  provisions  of 
the  bill  agreed  upon  by  the  committee  of  conference,  he  said  : 

^' Under  these  circumstances  it  remained  for  a  majority  of  the  House 
'  committee  to  determine  between   the  great  result  of  losing  an  important 

*  appropriation  bill,  or,  after  having  raised  a  question  of  this  magnitude 

*  touching  so  nearly  the  right  of  every  citizen  to  his  personal  liberty  and 
'  the  very  endurance  of  republican  institutions,  and  to  insure  its  consider- 
'  ation  fastened  it  on  an  appropriation  bill,  to  allow  it  to  be  stricken  out 

*  of  the  bill  as  a  matter  of  secondary  importance.     The  committee  thought 

*  that  their  duty  to  their  constituents,  to  the  House,  and  to  themselves, 
'  would  not  allow  them  to  provide  for  any  pecuniary  appropriations  at  the 

*  expense  of  so  grave  a  reflection  upon  the  fundamental  principles  of  the 
<  government." 

*'  The  practice  of  the  government  has  introduced  into  the  jurisprudence 

*  of   the   United   States,  principles  unknown   to    the  laws  of  the   United 

*  States,  loosely  described  under  the  general  term  of  '■  the  rules  and  usages 

*  of  wor,^  and  new  crimes,  defined  by  no  law,  called  '  military  ofi'ences  ;' 
'  and   without  the   authority  of  any  statute,  constitutional  or  unconstitu- 

*  tional,  pointing  these  laws — confined  by  the  usage  of  the  world  to  ene- 

*  mies  in  enemies'  territory — against  our  own  citizens  in  our  own  territory, 

*  the  government  has  repeatedly  deprived  many  citizens  of  the  United 

*  States  of  their  liberty,   has  condemned   many'to  death,  who   have  only 

*  been  redeemed  from  that  extreme  penalty  by  the  kindness  of  the  Presi- 

*  dent's  heart,  aided  doubtless  by  the  seri(  us  scruples  he  cannot  but  feel 

*  touching  the  legality  of  the  judgment  that  assigned  them  to  death. 

**  There    have  been    many  cases   in  which  judgments  of  confinement 

*  in  the  penitentiary  have  been   inflicted   for  acts  not  punishable,  either 

*  under  the  usages  of  war,  or  under  any  statute  of  the  United  States,  by 
'  any  military  tribunal ;  crimes  for  M'hich  the  laws   of  the   United   States 

*  prescribe  the  punishment  have  been  visited  with  other  and  severer  pun- 
'  ishments  by  military  tribunals  ;  violations  of  contract  with  the  government, 

*  real  or  imputed,  have   been  construed  by  these  tribunals  into  frauds,  and 

*  punished  illegally  as  crimes  ;  excessive  bail  has  been  demanded,  and  when 
'  furnished  impudently  refused  ;  and  the  attempt  of  Congress  to  discrimi- 
'  nate  between   crimes   committed  by  persons   in   the   military  forces  and 


26 


'  citizens  not  in  those  forces,   has  been  annulled,  and  the  very  offences  it 

*  specifically  required  to  be  tried  before  the  courts  of  the  United  States  have 

*  been  tried  before  inilitary  tribunals  dependent  upon  the  will  of  the  Pre&i- 

*  dent  alone." 

#**  »###* 

*^The  committee  remember  that  such   things  are   inconsistent  with  the 

*  endurance  of  republican  government.     The  party  which  tolerates  or  de- 

*  fends  them  must  destroy  itself  or  the  republic.  They  felt  they  had 
'  reached  a  point  at  which  a  vote  must  be  cast  which  may  break  up  politi- 

*  cal  parties,  or,  if  it  do  not,  will  break  up  or  save  a  great  republican  gov- 
'  ernment.  Before  these  alternatives  they  could  not  hesitate.  They  thought 
'  it  best,  now,  at  this  time,  to  leave  this  law  standing  as  a  broken  dike  in 
'  the  midst  of  the  rising  flood  of  lawless  power  around  us,  to  show  to  this 

*  generation  how  high  that  flood  of  lawless  power   has  risen  in  only  three 

*  years  of  civil  war,  as  a  warning  to  those  who  are  to  come  after  us,  as  an 

*  awakening  to  those  who  are  now  with  us. 

''  They  have,  therefore,  come  to  the  determination,  so  far  as  the  consti- 

*  tutional  privileges  and  prerogatives  of  this  House  will  enable  them  to 
'  accomplish  the  result,  that  this  bill  shall  not  become  a  law  if  these  woids 
'  do  not  stand  as  a  part  of  it — the  aflirmation  by  the  representatives  of  the 

*  states  and  of  the  people  of  the  inalienable  birthright  of  every  American 

*  citizen  ;  and   on   that   question   they  appeal   from  the   judgment  of   the 

*  Senate  to  th«.'  judgment  of  the  American  people." — Cong^l  Globe,  2nd 
sess.,  38th  Cong.,  Part  "id,  p.  1,422. 

The  appeal  was  taken;  the  bill  failed;  and  the  record  of  its  failure  is  an 
emphatic  declaration  that  the  House  of  Representatives  have  never  con- 
sented to  the  establishment  of  any  tribunals  except  those  authorized  by  the 
Constitution  of  the  United  States  and  the  laws  of  Congress. 

There  was  one  point  suggested  rather  than  insisted  upon  by  the  opposing 
counsel,  which  it  requires  but  little  more  than  a  statement  to  answer.  On 
page  15  of  their  briei,  the  learned  gentlemen  say  that  if  the  military  tribu- 
nal had  no  jurisdiction,  the  petitioners  may  be  held  as  prisoners  captured 
in  war,  and  handed  over  by  the  military  to  the  civil  authorities,  to  be  tried 
for  their  crimes  under  the  acts  of  Congress,  and  before  the  courts  of  the 
United  States. 

The  answer  to  this,  is  that  the  petitioners  were  never  enlisted,  commis- 
sioned, or  mustered  in  the  service  of  the  confederacy  ;  nor  had  they  been 
w^ithin  the  rebel  lines,  or  within  any  theater  of  active  military  operations  ; 
nor  had  they  been  in  any  way  recognized  by  the  rebel  authorities  as  in  their 
service.  Ttiey  could  not  have  been  exchanged  as  prisoners  of  war  ;  nor,  if 
all  the  charges  against  them  were  true,  could  they  be  brought  under  the 
legal  definition  of  spies.  There  appears  to  bo  no  ground  whatever  for 
calling  them  prisoners  of  war.  The  suggestion  of  our  opponents  that  the 
petitioners  ^hould  be  handed  over  to  the  civil  authorities  for  trial,  is  pre- 
cisely what  they  petitioned  for,  and  what,  according  to  the  laws  of  Con- 
gress, should  have  been  done. 

We  do  not  ask  that  they  shall  be  shielded  from  any  lawful  punishment, 
but  that  they  shall  not  be  unlawfully  punished,  as  they  now  are,  by  the 
sentence  of  a  tribunal  which  had  no  jurisdiction  over  either  their  persons 
or  the  subject-matter  of  the  charges. 

The  only  color  of  authority  for  such  a  trial,  was  found  in  the  President's 
proclamation  of  September  2-lth,   1862,  which  was  substantially  annulled 


by  the  habeas  corpus  act  of  March  3d,  1863,  and  the  subsequent  Presiden- 
tial proclamation  of  September  loth,  1863. 

By  these  acts*,  the  military  authority  could  only  arrest  and  hold  disaf- 
fected persons  till  after  a  session  of  the  United  States  District  Court. 

May  it  please  the  court,  I  have  thus  reviewed  the  principles  upon  which 
our  government  was  founded;  the  practice  of  the  fathers  who  fojnded  it;  and 
the  almost  unaniinous  sentiment  of  its  presidents,  congresses,  and  courts. 

I  have  shown  tliat  Congress  undertook  to  provide  for  all  the  necessities 
which  the  rebellion  imposed  upon  the  nation.  That  it  provided  for  the 
trial  and  pointed  out  expressly  the  mode  of  punishment  for  every 
crime  imputed  to  the  petitioners.  There  is  not  a  single  charge  or 
specification  in  the  petition  before  you,  not  a  single  allegation  of  crime, 
that  is  not  expressly  provided  for  in  the  laws  of  the  United  States, 
and  the  courts  are  designated  before  which  offenders  may  be  tried. 
These  courts  were  open  during  the  trial  and  had  never  been  disturbed 
by  the  rebellion.  The  military  commission  on  the  tenth  day  of  its 
session  withdrew  from  the  chamber  where  it  had  been  sitting,  that  the 
circuit  court  of  the  United  States  might  hold  its  regular  term  in  its  own 
building.  For  the  next  ten  days  the  commission  occupied,  by  permission, 
the  chamber  of  the  supreme  court  of  the  state  of  Indiana,  but  removed  to 
another  hall  when  the  regular  term  of  that  court  began.  This  military  com- 
mission sat  at  a  place  two  hundred  miles  beyond  the  sound  of  a  hostile  gun, 
in  a  state  that  had  never  felt  the  touch  of  martial  law,  that  had  never  been 
defiled  by  the  tread  of  a  hostile  rebel  foot,  except  on  a  remote  border,  and 
then  but  for  a  day.  That  state,  with  all  its  laws  and  courts,  with  all  its 
securities  of  personal  rights  and  privileges,  is  declared  by  the  opposing 
counsel  to  have  been  complete!}'  and  absolutely  under  the  control  of  martial 
1  iw  ;  that  not  only  the  constitution  and  laws  of  Indiana,  but  the  Constitu- 
tion and  laws  of  the  United  States  where  wholly  suspended,  so  tliat  no 
writ,  injunction,  prohibition,  or  mandate  of  any  district  or  circuit  court  of 
the  United  States,  or  even  of  this  august  tribunal,  was  of  any  binding  force 
or  authority  whatever  except  by  the  permission  and  at  the  pleasure  of  a 
military  commander. 

Such  a  doctrine,  may  it  please  the  court,  is  too  monstrous  to  be  tolerated 
for  a  moment  ;  and  I  trust  and  believe  that  when  this  cause  shall  have 
been  heard  and  considered  it  will  receive  its  just  and  final  condemnation. 
Your  decision  will  mark  an  era  in  American  history.  The  just  and 
final  settlement  of  this  great  question  will  take  a  high  place  amono;  the 
^reat  achievements  which  have  immortalized  this  decade.  It  will  es- 
tablish forever  this  truth,  of  inestimable  value  to  us  and  to  mankind,  that 
a  republic  can  wield  the  vast  enginery  of  war  without  breaking  down  the 
safeguards  of  liberty;  can  suppress  insurrection  and  .put  down  rebellion, 
however  formidable,  without  destroying  the  bulwarks  of  law;  can,  by  the 
might  of  its  armed  millions  preserve  and  defend  both  nationality  and  liberty. 
Victories  on  the  field  were  of  priceless  value,  for  they  plucked  the  life  of 
the  republic  out  of  the  hands  of  its  enemies,  but 

"  Peace  bath  her  victories 
No  less  renown'd  than  war," 

and  if  the  protection  of  law  shall,  by  your  decision,  be  extended  over 
every  acre  of  our  peaceful  territory,  you  will  have  rendered  the  great 
decision  of  the  century. 

When  Pericles  had  made  Greece  immortal  in  arts  and  arms,  in  liberty 
and  law,  he  invoked  the  genius  of  Phidias  to  devise  a   monument  which 


28 

should  symbolize  the  beauty  and  glory  of  Alhen?.  That  artist  selected 
for  his  theme  the  tutelar  divinity  of  Athens,  the  Jove-born  goddess,  pro- 
tectress of  arts  and  arms,  of  industiy  and  law,  who  typified  the  Greek 
conception  of  composed,  majestic,  unrelenting  force.  He  erected  on  the 
heights  of  the  Acropolis  a  colossal  statue  of  Minerva,  armed  with  spear 
and  helmet,  which  towered  in  awful  majesty  above  the  surrounding  tem- 
ples of  the  gods.  Sailors  on  far-off  ships  beheld  the  crest  and  spear  of 
the  goddess  and  bowed  wath  reverent  awe.  To  every  Greek  she  was  the 
symbol  of  power  and  glory.  But  the  Acropolis,  with  its  temples  and 
statues  is  now  a  heap  of  ruins.  The  visible  gods  have  vanished  in  the 
clearer  light  of  modern  civilization.  We  cannot  restore  the  decayed  em- 
blems of  ancient  Greece,  but  it  is  in  your  power,  0  Judges,  to  erect  in 
this  citadel  of  our  liberties  a  monument  more  lasting  than  brass;  invisible 
indeed  to  the  eye  of  flesh,  but  visible  to  the  eye  of  the  spirit  as  the  awful 
form  and  figure  of  Justice,  crowning  and  adorning  the  republic  ;  rising 
above  the  storms  of  political  strife,  above  the  din  of  battle,  above  the 
earthquake  shock  of  rebellion;  seen  from  afar  and  hailed  as  protector  by 
the  oppressed  of  all  nations;  dispensing  equal  blessings,  and  covering  with 
the  protecting  shield  of  law  the  weakest,  the  humblest,  the  meanest,  and, 
until  declared  by  solemn  law  unworthy  of  protection,  the  guiltiest  ot  its 
citizens. 


Note. — The  following  is  the  order  of  the  Supreme  Court  in  the  above  cases,  as  given 
on  the  last  day  of  its  session  : 

Supreme  Court  of  the  United  States. — No.  350. — December  Term,  1865. 

Ex-parte  in  the  matter  of"]  On  a  certificate  of  division  in  opinion  between  the  judges 
Larabdin  P.  Milligan,  V  of  the  Circuit  Court  of  the  United  States  for  the  District  of 
Petitioner.  J      Indiana. 

Mr.  Chief  Justice  CHASE  announced  the  order  of  the  Court. 

The  following  order  is  directed  by  a  majority  of  the  court  to  be  entered  in  this  caupc, 
and  the  like  order  will  be  entered  in  No.  365/ ex-parte  in  the  matter  of  William  A. 
Bowles,  petitioner,  and  in  No.  376,  ex-parte  in  the  matter  of  Stephen  Horsey,  petitioner. 

This  cause  came  on  to  be  heard  on  the  transcript  of  the  record,  from  the  Circuit  Court 
of  the  United  States  for  the  District  of  Indiana,  and  on  the  points  and  questions  on 
which  the  said  judges  of  the  circuit  court  were  opposed  in  opinion,  and  which  were  cer- 
tified in  this  court  for  its  opinion,  agreeably  to  the  act  of  Congress  in  such  case  made 
and  provided  ;  and  was  argued  by  counsel."  On  consideration  whereof  this  court  is  of 
opinion —  , 

I.  That  on  the  facts  as  stated  in  said  petition  and  exhibits,  a  writ  of  habeas  corpus 
ought  to  be  issued  according  to  the  prayer  of  said  petition. 

II.  That  on  the  facts  stated  in  the  said  petition  and  exhibits,  the  said  Larabdin  P. 
Milligan  ought  to  be  discharged  from  custody  as  in  said  petition  is  prayed,  and  according 
to  the  act  of  Congress,  passed  3d  March,  1863,  entitled  "An  act  relating  to  habeas  cor- 
pus, and  regulating  judicial  proceedings  in  certain  cases." 

III.  That  on  the  facts  stated  in  said  petition  and  exhibits,  the  military  commission 
mentioned  therein  had  no  jurisdiction  legally  to  try  and  sentence  said  Lambdin  P.  Mil- 
ligan in  the  manner  and  form  as  in  said  petition  and  exhibits  are  stated. 

''And  it  is  therefore  now  here  ordered  and  adjudged  by  this  court  that  it  be  so  certified 
to  the  said  circuit  court. 

The  Chief  Justice  also  announced  that  the  opinion  of  the  court  in  these  cases  will  be 
read  at  the  next  term,  when  such  of  the  dissenting  judges  as  see  fit  to  do  so,  will  state 
their  grounds  of  dissent. 


SUPEEME  COUJIT  OF  THE  UNITED  STATES. 

No.  365. 


EX   PARTE  :    IN   THE  MATTER  OF  WILLIAM    A.  BOWLES 

PETITIONER. 


ON  A  CERTIFICATE  OF  DIVISION  IN  OPINION  BETWEEN  THE  JUDGES  OF 
THE  CIRCUIT  COURT  OF  THE  UNITED  ^ATES  FOR  THE  DISTRICT  OF 
INDIANA. 


GOVERNMENT  PRINTING   OFFICE. 


'-i!^iQ 


i> 


Ex  parte,  in  the  matter  of  William  A.  Bowles, 


1  Pleas  of  the  circuit  court  of  the  United  States  for  the  district 
of  Indiana,  begun  and  held  at  the  court-house,  at  Indianapolis, 

on  the  1st  Tuesday  of  May,  in  the  year  one  thousand  eight  hundred 
and  sixty-five,  before  the  honorable  David  Davis,  one  of  the  associate 
justices  of  the  Supreme  Court  of  the  United  States,  and  the  honorable 
David  McDonald,  district  judge  of  the  United  States  for  the  district 
of  Indiana. 

Ex  parte:  William  A.  Bowles,  on  petition  for  a  writ  of  habeas  corpus. 

Be  it  remembered,  that  on  the  10th  day  of  May,  A.  D.  1865,  in  the 
court  aforesaid,  before  the  judges  aforesaid,  comes  Jonathan  W.  Gor- 
don, esq.,  of  counsel  for  said  Bowles,  and  files  here  in  open  court  the 
petition  of  said  Bowles,  to  be  discharged  from  a  certain   al- 

2  leged  unlawful  imprisonment,  with  three  exhibits  accompanying 
the  same,  marked,  respectively,  "A,''    ''B,^^and   "  C."     At 

the  same  time  comes  also  John  Hanna,  esq.,  the  attorney  prosecuting 
the  pleas  of  the  United  States  in  this  behalf  And  thereupon,  by 
agreement,  this  application  is  submitted  to  the  court,  and  day  is 
given,  &c.  And  the  said  petition  follows  in  these  words  and  figures, 
to  wit: 

The  United  States  of  America,  District  of  Indiana,  ss- 
In  the  circuit  court  of  the  United  States  in  and    for  the  eighth  cir- 
cuit and  the  district  of  Indiana,  term  of  May,  in  the  year  1865. 

Ex  parte:  William  A.    Bowles;  application   to  be  discharged  from 

Imprisonment. 
William  A.  Bowles  would  respectfully  represent  unto  the  honor- 
able the  judges  of  the  circuit  court  of  the  United  States  within  and 
for  the  district  of  the  State  of  Indiana,  that  he  is  a  natural-born  citi- 
zen of  the  United  States,  and  is  now  and  has  been  for  more  than 

3  twenty  years  last  past   a  citizen  of  the  said  district  and  State 
of  Indiana,  and  is  entitled  to  all  and  singular  the  rights,  privi- 
leges, and  immunities  of  citizens  of  the  United  States  and  of  the  State 
of  Indiana. 

He  further  says  that  he  has  not  been  in  the  military  service  of  the 
United  States  at  any  time  during  the  last  fifteen  years  past,  and  is  not 
now  and  never  was  in  the  naval  service  of  the  United  States  at  any 
time  during  his  whole  life,  and  is  not  now,  and  he  expressly  says  that 
at  the  time  of  the  commencement  of  the  grievances  hereinafter  set 
forth  he  was  not,  in  the  military  or  naval  service  of  the  United  States, 
and  has  not  been  therein  at  any  time  since. 

He  further  says  that  on  the  18th  day  of  September,  in  the  year 
1864,  at  and  in  the  district  of  Indiana  aforesaid,  and  at  his  own  home 
in  Orange  county,  in  said  Indiana,  he  was  forcibly  seized  and  arrested 
by  the  military  power  of  the  United  States,  and  under  the  authority 
of  the  President  thereof,  in  pursuance  of  the  order  and  command  of 
Brevet  Major  General  Alvin  P.  Hovey,  of  the  United  States 

4  volunteers,  who  was  at  that  time  in  command  of  the  military 
district  of  Indiana,  and  was  immediately  after  his  said  arrest 


2  Ex  parte,  in  the  matter  of  William  A,  Bowles. 

conveyed  from  his  home  in  said  Orange  county,  in  said  district,  to  the 
city  of  Indianapolis  therein,  and  was  placed  in  prison  and  under  a 
military  guard,  and  held  as  a  military  prisoner,  under  the  orders  and 
authority  of  the  President  aforesaid  and  s'd  General  Hovey,  and  has 
thenceforward  until  the  present  time  remained  in  close  confinement 
as  such  prisoner,  and  still  remains  so  in  the  military  prison  near  the 
''Soldiers'  Home"  in  said  city  of  Indianapolis.  And  further,  that 
within  the  last  few  days  his  imprisonment  has  been  rendered  more 
close  and  severe  than  before,  by  the  fastening  of  a  heavy  iron  ball 
and  chain  to  one  of  his  legs,  by  means  of  an  iron  clasp  or  fetter  about 
his  ankle. 

He  further  says  that  the  aforesaid  Brevet  Major  General  Alvin  P. 
Hovey,  military  commander  of  the  district  of  Indiana,  holds  him  in 
said  military  prison  in  confinement,  under  the  immediate  com- 
5  mand  and  control  of  Colonel  A.  J.  Warner,  of  the  17th  regiment 

of  the  veteran  reserve  corps,  now  in  the  military  service  of  the 
United  States,  and  inferior  officers  and  soldiers  under  the  command  of 
the  said  Colonel  Warner. 

He  further  says  that  after  his  arrest,  transportation  to,  and  im- 
prisonment at  and  in  said  military  prison,  near  the  "Soldiers'  Home," 
in  said  city  of  Indianapolis  and  district  of  Indiana,  to  wit,  on  the 
21st  day  of  October,  in  the  year  1864,  one  Major  "Henry  S.  Bur- 
nett, judge  advocate,  department  of  the  Ohio  and  northern  depart- 
ment," preferred  five  several  charges,  and  sixteen  several  specifica- 
tions thereunder,  against  him,  the  said  Bowles,  and  four  other  per- 
sons, to  wit,  .Andrew  Humphreys,  Horace  Heffren,  Lambdin  P. 
Milligan,  and  Stephen  Horsey,  which  said  charges  and  specifications 
are  made  part  of  this  petition,  and  a  printed  copy  thereof  herewith 
filed,  and,  for  greater  certainty  of  reference,  marked  "Exhibit  A;" 
and  he  sa^'S  that  said  Brevet  Major  General  Alvin  P.  Hovey^ 
6,  military  commander  of  said  district  of  Indiana,  as  aforesaid, 

afterwards  to  wit,  on  the  day  of  October,  in  the  year  1864, 
approved  said  charges,  and  directed  the  said  Wm.  A.  Bowles,  and 
others  against  whom  said  charges  were  preferred  by  the  said  judge 
advocate,  to  be  arraigned  and  tried  thereon  by  a  certain  "military 
commission,"  which  he,  the  said  Brevet  Major  General  Alvin  P. 
Hovey,  commander,  <fec.,  as  aforesaid,  had  previously  ordained,  ap- 
pointed,  and  convened  at  said  Indianapolis  for  the  trial  of  such 
uflenders  as  might  be  from  time  to  time  sent  before  it  for  trial;  and 
he  hereby  makes  the  order  of  said  Brevet  Major  General  Alvin  P. 
Hovey,  military  commander,  &c.,  as  aforesaid,  ordaining,  appointing, 
and  convening  said  military  commission,  a  part  of  this  his  petition, 
and  files  a  copy  thereof  herewith,  which  he  marks  "Exhibit  B"  for 
greater  certainty  of  reference. 

He  further  says  that  afterwards,  to  wit,  on  the  21st  day  of  Octo- 
ber, in  the  year  1 864,  in  pursuance  of   and  obedience  to   the 
7  order  of  said  Brevet  Major  General  Alvin  P.  Hovey,  military 

commander  as  aforesaid,  he  and  the  other  persons  charged 
with  him  in  said  several  charges  and  specifications  were  brought 
before  said  military  commission,  and  were  then  and  there  arraigned 


\ 


Ex  parte f  in  the  matter  of  William  A.  Bowles,  8 

upon  said  several  charges  and  specifications  before  said  commission 
by  the  said  Henry  S.  Burnett,  judge  advocate  as  aforesaid,  and  sev- 
erally pleaded  thereto  "not  guilty''  of  said  several  charges  and 
specifications;  but  he  further  says  that  prior  to  his  pleading  to  said 
several  charges  and  specifications  as  aforesaid,  it  was  expressly  under- 
stood and  agreed  between  the  said  judge  advocate  and  himself  and 
his  attorneys,  that  his  said  plea  should  not  in  anywise  impair  his 
right  to  object  to  the  jurisdiction  of  said  military  commission  to  try 
liim  upon  said  charges  and  specifications,  or  any  of  them,  upon  final 
argument  therein;  and  that  his  objection,  when  so  made,  should  have 
the  same  force  and  effect  to  which  it  would  have  been  entitled  if 

made  prior  to  putting  in  said  plea.  He  further  says  that 
S  after  his  arraignment  and  pleading  to  said  charges  and  specie 

cations  as  aforesaid,  he  and  others  charged  with  him  were 
put  upon  trial  before  and  by  said  military  commission,  and  were  all 
tried  by  said  commission,  except  the  said  Horace  Heffren,  who  was 
released  from  said  charges  and  specifications  by  the  said  judge  advo^ 
€ate  in  order  that  he  might  become  a  witness  on  behalf  of  the  govern- 
ment, as  it  was  then  said.  And  he  further  says  that  said  trial  was 
fully  ended  and  concluded  as  early  as  the  1st  day  of  January,  in  the 
year  1865,  And  he  further  says  that  said  military  commission  found 
him  guilty,  and  sentenced  him  to  be  hung,  as  will  more  fully  and  at 
large  appear,  reference  being  had  to  General  Court-Martial  Orders 
No.  214  of  the  War  Department  of  the  government  of  the  United 
States  for  1865,  which  is  made  part  hereof,  and  a  copy  thereof  here- 
with filed,  marked  "Exhibit  C."  And  he  further  says  that  said  sen- 
tence is  ordered  by  the  military  commander  of  the  district  of  In- 
diana aforesaid  to  be  executed  upon  him  on  Friday,  the  19th  day  of 
May,  in  the  year  1865,  at  a  place  near  Camp  Morton,  in  the  county 

of  Marion,  and  in  the  State  and  district  a,foresaid. 

9  He  further  says  that  after  the  proceedings  of  said  military 
commission  were  closed  and  at  an  end,  and  more  than  twenty 

days  after  the  commencement  of  his  imprisonment  aforesaid,  to  wir, 
•on  the  2d  day  of  January,  in  the  year  1865,  the  honorable  circuit 
court  of  the  United  States  for  the  circuit  and  district  aforesaid  con- 
vened in  the  United  States  court-room  in  the  city  of  Indianapolis,  in 
said  district,  and  a  legal  and  proper  grand  jury  of  the  United  States 
were  then  and  there  in  said  court  duly  empanelled,  sworn,  and 
charged  to  inquire  within  and  for  the  district  of  Indiana  aforesaid, 
and  due  presentments  make  of  all  crimes  and  misdemeanors  therein 
committed  against  the  laws  of  the  United  States,  and  the  peace  and 
dignity  of  the  same. 

He  further  says  that  the  said  term  of  said  circuit  court  afterward.-*, 
to  wit,  on   the   2Tth  day   of  January,  in  the  year   1865,  cauie  to  ,ari. 
end,  and  the  said  court  then  and  there  adjourned  until  the   1st  Tues- 
day in  May,  1865,  having  prior  to  the   adjournment  thereof,  to  wk, 
on  the  27th  day  of  January,  in  the  year  1865,  discharged  tlu 

10  said  grand  jury  from  further  service   at  said   term  of  saiJ 
court. 

And  he  expressly  aaya  that;  ss^id   grand  jury  at  said  tern  of*  Ea  d 


4  Ex  parte y  in  the  matter  of  William  A,  Bowles, 

court  adjourned  and  was  discharged  by  said  court  without  having' 
found  any  bill  of  indictment  or  made  any  presentment  whatever 
against  him  for  any  oifence  whatever  against  any  law  of  the  United 
States  or  otherwise;  and  that  no  bill  of  indictment  or  presentment  has 
ever  been  found  or  made  against  him  by  any  grand  jury  of  the  United 
States  since  his  imprisonment, for  any  offence  whatever,  although  said 
grand  jury  met,  inquired,  and  adjourned  as  aforesaid  at  the  said 
term  of  said  circuit  court. 

He  further  says  that  said  military  commission  had  no  jurisdiction 
whatever  under  the  laws  and  Constitution  of  the  United  States  to 
try  him  upon  said  charges  or  upon  any  charges  whatever,  he  being  a 
citizen  of  the  United  States  and  of  the  State  of  Indiana,  and  never 
having  been  at  any  time  since  the  commencement  of  the  present  re- 
bellion in  the  United  States  a  resident  of  any  one  of  the  States  whose 
citizens  were  arrayed  against  the  government  of  the  United  States. 
He  further  says  that  owing  to  the  fact  that  he  has  all  the 

11  time  from  commencement  of  said  rebellion  until  his  arrest, 
imprisonment,  and  trial  by  said  military  commission,  been  an 

inhabitant,  resident,  and  citizen  of  Indiana,  whose  government  and 
people  have  upheld  and  supported  the  government  of  the  United 
States  in  its  conflict  with  rebels  in  arms  against  it,  it  was,  has  been, 
and  still  is  wholly  out  of  bis  power  to  have  acquired  belligerent  rights 
and  placed  himself  in  such  relation  to  government  as  to  have  enabled 
him  to  violate  the  laws  of  war;  nor  can  he  ascertain  how  it  is  possi- 
ble for  him  to  have  forfeited  the  rights  guaranteed  by  the  Constitu- 
tion to  every  citizen  of  a  trial  within  the  State  and  district  in  which 
his  alleged  offences  are  charged  to  have  been  committed,  upon  an 
indictment  by  a  grand  jury  of  such  district  duly  empanelled  and 
sworn,  and  by  an  impartial  jury  of  such  district  empanelled,  tried, 
and  sworn  according  to  law. 

12  In  order,  therefore,  that  he  may  have  his  legal  and  consti- 
tutional rights,  he  prefers  this  his  humble  petition  to  the  hon- 
orable circuit  court  of  the  United  States  for  the  district  of  Indiana, 
and  prays  that  under  the  act  of  Congress  approved  March  3d,  1863, 
entitled  "An  act  relating  to  /ia6ea5  co?'jO?<s  and  regulating  judicial 
proceedings  in  certain  cases,''  he  may  be  brought  before  this  court 
by  writ  of  habeas  corpus,  or  such  other  process  as  the  court  may  award 
lor  that  purpose,  together  with  the  cause  of  his  caption  and  deten- 
tion, to  do  and  receive  whatsoever  the  court  may,  upon  full  and  final 
hearing,  order  and  adjudge  in  relation  thereto  in  pursuance  of  the  act 
of  Congress  aforesaid, and  that  at  all  events  he  may  be  delivered  from 
said  military  custody  and  imprisonment,  and  if  found  probably  guilty 
of  any  improper  conduct  or  offence  against  the  United  States  of  Amer- 
ica, turned  over  to  the  proper  civil  tribunal  for  inquiry  and  punish- 
ment according  to  law,  or  for  discharge  from  custody  altogether. 

He  further  prays  that  said  writ  may  be  directed  to  the  said  Alvin 

P.  Hovey,  brevet  major  general  commanding,  &c.,  as  aforesaid,  the 

said  A.  J.  Warner,  colonel,  &c.,  as  aforesaid,  and  to  all  other 

13  persons  under  themj  or  either  of  them,  and  that  they,  each  and 
all,  be  required  to  produce  in  court  the  body  of  him,  the  said 


ExpartCy  in  the  matter  of  William  A,  Bowles.  5 

William  A.  Bowles,  together   with  the  cause  of  his  caption  and  de- 
tention. 

And,  as  in  duty  bound,  he  will  ever  pray,  &c.,  &c. 

W.  A.  BOWLES. 

Subscribed  and  sworn  to  before  me,  the  undersigned,  a  notary 
public  in  and  for  the  county  of  Marion  and  State  of  Indiana,  this 
10th  day  of  May,  in  the  year  1865. 

In  testimony  whereof,  I  have  hereunto  set  my  name  and  affixed 
notarial  seal,  at  Indianapolis,  in  said  county  and  State. 

[L.  s.]  MILTON  BELL,  Notary  PuUic, 

[U.  S.  5-ct.  revenue  stamp.] 

And  said  Exhibit  '  'A'  ^  follows  in  these  words  and  figures,  to  wit : 
Charges  and  specifications  preferred  against  William  A.  Bowles^  Andrew 
Humphreys,   Horace  Heffren,    Lamhdin  P.    Milligan,    and   Stephen 
Horsey,  citizens  of  the  State  of  Indiana,  United  States  of  America. 

14  Chaege  fiest. — Conspiracy  against  the  government  of  the 
United  States. 

Specification  first. — In  this  :  that  the  said  Wm.  A.  Bowles,  Andrew 
Humphreys,  Horace  HefFren,  Lambdin  P.  Milligan,  and  Stephen 
Horsey  did,  among  themselves,  and  with  Harrison  H.  Dodd,  of  In- 
diana, Joshua  F.  Bullitt,  of  Kentucky,  J.  A.  Barrett,  of  Missouri,  and 
others,  conspire  against  the  government  and  duly  constituted  authori- 
ties of  the  United  States,  and  did  join  themselves  to  and  secretly 
organize  and  disseminate  a  secret  unlawful  society  or  order  known 
as  the  order  of  American  Knights  or  order  of  the  Sons  of  Liberty, 
having  both  a  civil  and  military  organization  and  jurisdiction,  for  the 
purpose  of  overthrowing  the  government  and  duly  constituted  au- 
thorities of  the  United  States.  This  at  a  period  of  war  and  armed 
rebellion  against  the  authority  of  the  United  States,  at  or  near  In- 
dianapolis, Indiana,  a  State  within  the  military  lines  of  the  army  of 
the  United  States,  and  the  theatre  of  military  operations,  and 

15  which  had  been  and  was  constantly  threatened  to  be  invaded 
by  the  enemy.     This  on  or  about  the  16th  day  of  May,  1864. 

Specification  second. — In  this:  that  the  said  Wm.  A.  Bowles,  Andrew 
Humphreys,  Horace  HefFren,  Lambdin  P.  Milligan,  and  Stephen 
Horsey,  during  an  existing  rebellion  against  the  government  and  au- 
thorities of  the  United  States,  said  rebellion  claiming  to  be  in  the 
name  of  and  on  behalf  of  certain  States,  being  a  part  of  and  owing 
allegiance  to  the  United  States,  did  combine  and  agree  with  one 
Harrison  H.  Dodd,  of  Indiana,  Joshua  F.  Ballitt,  of  Kentucky,  J.  A. 
Barrett,  of  Missouri,  and  others,  to  adopt  and  impart  to  others  the 
creed  or  ritual  of  a  secret  unlawful  society  or  order  known  as  the 
order  of  American  Knights  or  order  of  the  Sons  of  Liberty,  deny- 
ing the  authority  of  the  United  States  to  coerce  to  submission  cer- 
tain rebellious  citizens  of  said  United  States,  designing  thereby  to 
lessen  the  power  and  prevent  the  increase  of  the  armies  of  the 
United  States,  and  thereby  did  recognize  and  sustain  the  right  of  the 
citizens  and  States  then  in  rebellion  to   disregard  and  resist 

16  the  authority  of  the  United  States.     This  at  a  period  of  war 


6  Ex  farte^  in  the  matter  of  William  A.  Bowles, 

and  armed  rebellion  against  the  authority  of  the  United  States, 
at  or  near  the  city  of  Indianapolis,  Indiana,  a  State  within  the  mili- 
tary lines  of  the  army  of  the  United  States,  and  the  theatre  of  mili- 
tary operations,  which  had  been  and  was  threatened  to  be  invaded 
by  the  enemy.     This  on  or  about  the  22d  day  of  February,  1864. 

S}jecification  third. — In  this:  that  the  said  Wm.  A.  Bowles,  Andrew 
Humphreys,  Horace  Heifren,  Lambdin  P.  Milligan,  and  Stephen 
Horsey,  citizens  of  the  State  of  Indiana,  owing  true  faith  and  allegi- 
ance to  the  government  of  the  United  States,  and  while  pretending 
to  be  peaceable  loyal  citizens  of  the  government,  did  secretly  and  co- 
vertly combine,  agree,  and  conspire  among  themselves,  and  with  one 
Harrison  H.  Dodd,  of  Indiana,  Joshua  F.  Bullitt,  of  Kentucky,  J.  A. 
Barrett,  of  Missouri,  and  others,  to  overthrow  and  render  powerless 
the  government  of  the  United  States,  and  did,  in  pursuance  of  said 
combination,  agreement,  and  conspiracy,  form  and  organize  a  certain 

unlawful  secret  society  or  order,  and  did  extend  and  assist  in 
IT         extending  said  unlawful  secret  society  or  order  known  as  the 

order  of  American  Knights  or  order  of  Sons  of  Liberty,  whose 
intent  and  purpose  was  to  cripple  and  render  powerless  the  efforts  of 
the  government  of  the  United  States,  in  suppressing  a  then  existing 
formidable  rebellion  against  said  government.  This  on  or  about  the 
Ist  day  of  October,  1863,  at  a  period  of  war  and  armed  rebellion,  at 
or  near  the  city  of  Indianapolis,  Indiana,  a  State  within  the  military 
lines  of  the  army  of  the  United  States,  and  the  theatre  of  militaay 
operations,  which  bad  been  and  was  constantly  threatened  to  be 
invaded  by  the  enemy. 

'  Specification  fourth. — In  this:  that  the  said  William  A.  Bowles^ 
Andrew  Humphreys,  Horace  Heffren  Lambdin  P.  Milligan,  and 
Stephen  Horsey  did  conspire  and  agree  with  Harrison  H.  Dodd,  Da- 
vid T.  Yeagle,  John  C.  Walker,  and  Joshua  F.  Bullitt,  and   others, 

(these  men  at  that  time  holding  military  positions  and  rank  in 

18  a  certain  secret  unlawful  society  or  organization  known  as  the 
order  of  American  Knights  or  order  of  the  Sons  of  Liberty,) 

to  seize  by  force  the  United  States  and  State  arsenals  at  Indianapolis, 
Indiana,  Columbus,  Ohio,  and  Springfield,  Illinois,  to  release,  by  force, 
the  rebel  prisoners  held  by  the  authorities  of  the  United  States  at 
Camp  Douglas,  Illinois,  Camp  Morton,  Indiana,  and  Camp  Chase,  Ohio, 
and  the  depot  of  prisoners  of  war  on  Johnson's  island,  and  arm  those 
prisoners  with  the  arms  thus  seized;  and  that  these  said  conspirators, 
with  all  the  forces  they  were  able  to  raise  in  the  secret  order  above 
named,  were,  in  conjunction  with  the  rebel  prisoners  thus  released  and 
armed,  to  march  into  Kentucky  and  Missouri,  and  co-operate  with 
the  rebel  forces  to  be  sent  to  those  States  by  the  rebel  authorities 
agEiinst  the  government  and  authorities  of  the  United  States.  This 
on  or  about  the  20th  day  of  July,  1864,  at  a  period  of  war  and  rebel- 
lion against  the  authority  of  the  United  States,  at  or  near  the  city  of 
Chicago,  Illinois,  a  State  within  the  lines  of  the  army  of  the 

19  United   States,    and  the   theatre  of  military  operations,    and 
threatened  by  invasion  of  the  enemy. 

Charge  second. ^-Affording  aid  and  comfort  to  rebels  against  the 

,..'>,.:.,,,  ,.r.],p,  TTr''::.r]  State-. 


Ex  'parley  in  the  matter  of  William  A,  Bowles,  7 

Specification  first. — In  this:  that  the  said  William  A.  Bowles,  An- 
drew Humphreys,  Horace  HefFren,  Lambdin  P.  Milligan,  and  Stephen 
Horsey,  being  then  members  of  a  certain  secret  unlawful  society  or 
order  known  as  the  order  of  American  Knights  or  order  of  the  Sons 
of  Liberty,  the  United  States  being  then  in  arms  to  suppress  a  rebel- 
lion in  certain  States  against  the  authority  of  the  United  States,  (said 
William  A.  Bowles,  Andrew  Humphreys,  Horace  Heffron,  Lambdin 
P.  Milligan,  Stephen  Horsey,  and  others,  then  and  there  acting  as 
members  and  officers  of  said  secret  unlawful  society  or  order,)  did 
design  and  plot  to  communicate  with  the  enemies  of  the  United  States, 
-and  did  communicate  with  the  enemies  of  the  United  States,  with  the 
intent  that  they  should,  in  large  force,  invade  the  territory  of 

20  the   United  States,  to  wit,  the  States  of  Kentucky,   Indiana, 
and  Illinois,  with  the  further  intent  that  the  so-called  secret 

unlawful  society  or  order  aforesaid  should  then  and  there  co-ope- 
rate with  the  said  armed  forces  of  the  said  rebellion  against  the  au- 
thority of  the  United  States,  and  did  communicate  to  said  armed  forces 
the  intent  and  purposes  of  said  secret  unlawful  society  or  order. 
This  at  a  period  of  war  and  armed  rebellion  against  the  authority  of 
the  United  States,  at  or  near  the  city  of  Indianapolis,  Indiana,  a  State 
within  the  military  lines  of  the  army  of  the  United  States,  and  the 
theatre  of  military  operations,  which  had  been  and  was  constantly 
threatened  to  be  invaded  by  the  enemies  of  the  United  States.  This 
on  or  about  the  16th  day  of  May,  1864. 

Specification  second. — In  this:  that  the  said  William  A.  Bowles,  An- 
drew Humphreys,  Horace  HefFren,  Lambdin  P.  Milligan,  and  Stephen 
Horsey,  while  the  government  was  attempting   by  force  of  arms  to 
suppress  an  existing  rebellion,  while  guerillas  and  other  armed 

21  supporters  of  the  rebellion  were  in  the  State  of  Kentucky,  did 
send  a  messenger  and  brother  member  with  them  of   a  secret 

unlawful  society  or  order  known  as  the  order  of  American  Knights 
or  order  of  the  Sons  of  Liberty,  into  said  State  of  Kentucky,  with 
instructions  for  Joshua  F.  Bullitt,  grand  commander  of  said  secret 
unlawful  society  or  order  in  said  State,  and  other  members  of  said 
secret  society  or  order  in  said  State,  to  select  good  couriers  or  run- 
ners, to  go  upon  short  notice,  and,  for  the  purpose  of  assisting  those 
in  rebellion  against  the  United  States,  to  call  to  arms  the  members  of 
said  secret  society  or  order  and  other  sympathizers  with  the  existing 
rebellion  whenever  a  signal  should  be  given  by  the  authorities  of 
said  secret  society  or  order.  This  on  or  about  the  20th  day  of  July, 
1864,  at  a  period  of  war  and  armed  rebellion  against  the  authority  of 
the  United  States,  at  or  near  Indianapolis,  Indiana,  a  State  within 
the  military  lines  of  the  army  of  the  United  States,  and  the  theatre  of 
military  operations,  and  which  had  been  and  was  constantly  threat- 
ened to  be  invaded  by  the  enemy. 

Specification  third. — In  this:  that  the  said  William  A.  Bowles,  An- 
drew Humphreys,  Horace  HefFren,  Lambdin  P.  Milligan,  and 

22  Stephen  Horsey,  iDcing  citizens  of  the  State  of  Indiana,  United 
States   of  America,  and  owing   true    allegiance    to    the    said 

United  States,  did  join  themselves  to  a  certain  unlawful  secret  society 


8  Ex  parte  J  in  the  matter  of  William  A.  Bowles, 

or  order  known  as  the  order  of  American  Knights  or  order  of  Sons  of 
Liberty,  designed  for  the  overthrow  of  the  government  of  the  United 
States,  and  to  compel  terms  with  the  citizens  or  authorities  of  the  so- 
called  Confederate  States,  the  same  being  portions  of  the  United 
States,  and  in  rebellion  against  the  authority  of  the  United  States, 
and  did  communicate  the  designs  and  intent  of  said  order  to  those  in 
rebellion  against  the  government  of  the  United  States.  This  on  or 
about  the  20th  day  of  July,  1864,  at  a  period  of  war  and  armed 
rebellion  against  the  authority  of  the  United  States,  at  or  near  In- 
dianapolis, Indiana,  a  State  within  the  military  lines  of  the  army  of 
the  United  States,  and  the  theatre  of  military  operations,  and  which 
had  been  and  was  constantly  threatened  to  be  invaded  by  the  enemy. 

Charge  third. — Inciting  insurrection. 

Sjpecificaiion  first . — In  this:  that  the  said  William  A.  Bowles,  An- 
drew Humphreys,  Horace  Heffren,  Lambdin  P.  Milligan,  and 

23  Stephen  Horsey  did,  during  a  time  of  war  between  the  United 
States  and  armed  enemies  of  the  United  States  and  of  re- 
bellion against  its  government,  organize  and  attempt  to  arm,  and  did 
arm,  a  portion  of  the  citizens  of  the  United  States,  through  an  un- 
lawful secret  society  or  order  known  as  the  order  of  American 
Knights  or  order  of  Sons  of  Liberty,  with  the  intent  to  induce  them, 
with  themselves,  to  throw  off  the  authority  of  the  United  States,  and 
co-operate  with  said  armed  enemies  of  the  United  States  against  the 
legally  constituted  authorities  of  the  United  States.  This  on  or  about 
the  20th  day  of  July,  1864,  at  or  near  Indianapolis,  Indiana,  a  State 
within  the  military  lines  of  the  army  of  the  United  States,  and  the 
theatre  of  military  operations,  and  which  had  been  and  was  con- 
stantly threatened  to  be  invaded  by  the  enemy. 

Specification  second. — In  this:   that  the  said  William  A.  Bowles, 

Andrew   Humphreys,   Horace    Heffren,    Lambdin  P.    Milligan,   and 

Stephen   Horsey  did,  by  public   addresses,  by  secret  circulars    and 

communications,   and  by  other   means,   endeavor  to    and  did 

24  arouse  sentiments  of  hostility  to  the  government  of  the  United 
States,  and  did  attempt  to  induce  the  people  to  revolt  against 

said  government,  and  secretly  organize  and  arm  themselves  for  the 
purpose  of  resisting  the  laws  of  the  United  States  and  the  orders  of 
the  duly  elected  President  thereof.  This  on  or  about  the  16th  day  of 
February,  1864,  at  a  period  of  war  and  armed  rebellion  against  the 
authority  of  the  United  States,  at  or  near  Indianapolis,  Indiana,  a 
State  within  the  military  lines  of  the  army  of  the  United  States,  and 
the  theatre  of  military  operations,  and  which  had  been  and  was  con- 
stantly threatened  to  be  invaded  by  the  enemy. 

Charge  fourth. — Disloyal  practices. 

Specification  first. — In  this:  that  the  said  William  A.  Bowles,  An- 
drew Humphreys,  Horace  Heffren,  Lambdin  P.  Milligan,  and  Stephen 
Horsey,  at  a  time  of  war  and  during  an  armed  rebellion  against  the 
legally  constituted  authorities  and  government  of  the  United  States, 
did  counsel  and  advise  citizens  of,  and  owing  allegiance  and  military 
service  to,  the  United  States,  to  disregard  the  authority  of  the 

25  United  States,  and  to  resist  u  call  or  draft  designed  to  in- 


Ex  parte f  in  the  matter  of  William  A.  Bowles.  9 

crease  the  army  of  the  United  States,  and  did  make  preparation 
and  attempt  to  arm,  and  did  arm,  certain  citizens  of  the  United 
States  belonging  to  a  certain  unlawful  secret  society  or  order  known 
as  the  order  of  American  Knights  or  order  the  Sons  of  Liberty,  for 
the  purpose  and  with  the  intent  of  resisting  said  call  or  draft. 
This  on  or  about  the  1st  day  of  July,  1864,  at  or  near  Shoal's  Station, 
Martin  county,  Indiana,  a  State  within  the  military  lines  of  the  army 
of  the  United  States,  and  the  theatre  of  military  operations,  and 
which  had  been  and  was  constantly  threatened  to  be  invaded  by  the 
«nemy- 

Specification  second. — In  this:  that  the  said  Wm.  A.  Bowles,  Andrew 
Humphreys,  Horace  Hefifren,  Lambdin  P.  Milligan,  and  Stephen 
Horsey,  at  a  time  of  war  and  during  an  armed  rebellion  against  the 
legally  constituted  authorities  and  government  of  the  United  States, 
did  counsel  and  advise  citizens  of,  and  owing  allegiance  and  military 
service  to,  the  United  States,  to  disregard  the  authority  of  the  United 
States,  and  to  resist  a  call  or  draft  designed  to  increase  the 

26  army  of  the  United  States,  and  did  make  preparation  and  at- 
tempt to  arm,  and  did  arm,  certain   citizens  of  the  United 

States  belonging  to  a  certain  unlawful  secret  society  or  order  known 
as  the  order  of  American  Knights  or  order  of  the  Sons  of  Liberty, 
for  the  purpose  and  with  the  intent  of  resisting  said  call  or  draft. 
This  on  or  about  the  1st  day  of  November,  1863,  at  or  near  Green 
Fork  township,  Randolph  county,  Indiana,  a  State  within  the  mili- 
tary lines  of  the  army  of  the  United  States,  and  the  theatre  of  military 
operations,  and  which  had  been  and  was  constantly  threatened  to  be 
invaded  by  the  enemy. 

Specification  third. — In  this:  that  the  said  Wm.  A.  Bowdes,  Andrew 
Humphreys,  Horace  Heffren,  Lambdin  P.  Milligan,  and  Stephen 
Horsey,  at  a  time  of  war  and  during  an  armed  rebellion  against  the 
legally  constituted  authorities  and  government  of  the  United  States, 
did  counsel  and  advise  citizens  of,  and  owing  allegiance  and  military 
service  to,  the  United  States,  to  disregard  the  authority  of  the  Uni- 
ted States,  and  to  resist  a  call  or  draft  designed  to  increase 

27  the  army  of  the  United  States,  and  did  make  preparation  and 
did  attempt  to  arm,  and  did  arm,  certain  citizens  of  the  United 

States  belonging  to  a  certain  unlawful  secret  society  or  order  known 
as  the  order  of  American  Knights  or  order  of  Sons  of  Liberty,  for 
the  purpose  and  with  the  intent  of  resisting  said  call  or  draft.  This 
on  or  about  the  16th  day  of  May,  1864,  at  or  near  Indianapolis,  In- 
diana, a  State  within  the  military  lines  of  the  army  of  the  United 
States,  and  the  theatre  of  military  operations,  and  which  had  been 
and  was  constantly  threatened  to  be  invaded  by  the  enemy. 

Specification  fourth. — In  this:  that  the  said  Wra.  A.  Bowles,  Andrew 
Humphreys,  Horace  Heffren,  Lambdin  P.  Milligan,  and  Stephen 
Horsey,  at  a  time  of  war  and  during  an  armed  rebellion  against  the 
legally  constituted  authorities  and  government  of  the  United  States, 
did  counsel  and  advise  citizens  of,  and  owing  allegiance  and  military 
service  to,  the  United  States,  to  disregard  the  authority  of  the  Uni- 
ted States,  and  to  resist  a  call  or  draft  designed  to  increase  the  army 


10  Ex  parte y  in  the  matter  of  William  A.  Bowles. 

of  the  United  States,  and  did  nriake  preparation  and  attempt- 

28  to  arm,  and  did  arm,  certain  citizens  of    the  -United  States 
belonging  to  a  certain  unlawful  secret  society  or  order  known 

as  the  order  of  American  Knights  or  order  of  the  Sons  of  Liberty, 
for  the  purpose  and  with  the  intent  of  resisting  said  call  or  draft. 
This  on  or  about  the  1st  day  of  August,  1864,  at  or  near  Salem, 
Washington  county,  Indiana,  a  State  within  the  military  lines  of  the 
army  of  the  United  States,  and  the  theatre  of  military  operations,  and 
which  had  been  and  was  constantly  threatened  to  be  invaded  by  the 
enemy. 

Specification  fifth. — In  this:  that  the  said  Wm.  A.  Bowles,  Andrew 
Humphreys,  Horace  HefFren.  Lambdin  P.  Milligan,  and  Stephen 
Horsey  did  accept  and  hold  offices  of  the  military  forces  for  the  State 
of  Indiana,  in  a  certain  unlawful  secret  society  or  order  known  as  the 
order  of  American  Knights  or  order  of  the  Sons  of  Liberty,  which  said 
offices  and  military  forces  were  unknown  to  the  Constitution  and  lawa 
of  the  United  States  or  of  the  State  of  Indiana,  and  were  not  in  aid 
of,  but  opposed  to,  the  legally  constituted  authorities  thereof.  This 
on  or  about  the  16th  day  of  February,  1864,  at  a  time  of  war 

29  and  armed  rebellion  against  the  authority  of  the  United  States, 
at  or  near  Indian'apolis,  Indiana,  a  State  within  the  military 

lines  of  the  army  ot^he  United  States,  and  the  theatre  of  military 
operations,  and  which  had  been  and  was  constantly  threatened  to  be^ 
invaded  by  the  enemy. 

Charge  fifth.— Violation  of  the  la^vs  of  war. 

Specification  first. — In  this:  that  the  said  William  A.  Bowles,  Andrew 
Humphreys,  Horace  HefFren,  Lambdin  P.  Milligan,  and  Stephen 
Horsey  did,  while  the  government  of  the  United  States  was  carrying 
on  a  w^ar  with  the  enemies  of  the  United  States  engaged  in  rebellion 
against  their  authority,  ,while  pretending  to  be  peaceable  loyal  citi- 
zens of  the  United  States^  violate  their  allegiance,  and  did,  as  citizens 
of  said  government,  attempt  to  introduce  said  enemies  of  the  United 
States  into  the  loyal  States  of  said  United  States,  thereby  to  over- 
throw and  destroy  the  authority  of  the  United  States.  This  on  or 
about  the  16th  day  of  May,  1864,  at  or  near  the   city  of  In- 

30  dianapolis,  Indiana,  a  State  within  the   military  lines  of  the 
army  of  the  United  States,  and  the  theatre  of  military  opera- 
tions, which  had   been  and  was   constantly  threatened  to  be  invaded 
by  the  enemy. 

Specifi,cation  second. — In  this:  that  the  said  William  A.  Bowles,  An- 
drew Humphreys,  Horace  Heffren,  Lambdin  P.  Milligan,  and  Stephen 
Horsey  did,  during  a  war  between  the  United  States  and  the  said 
enemies  of  the  United  States  engaged  in  rebellion  against  their  au- 
thority, and  while  pretending  to  be  peaceable  loyal  citizens  of  the 
United  States,  organize  and  extend  a  certain  unlawful  secret  society 
or  order  known  as  the  order  of  American  Knights  or  order  of  the 
Sons  of  Liberty,  having  for  its  purpost;  the  same  general  object  and 
design  as  the  said  enemies  of  the  United  States,  and  with  the  intent 
to  aid  and  insure  the  success  of  said  enemies  in  their  resistance  to 
the  legally  constituted  authorities  of  the  United  States.     This  at  or 


Ex  parte,  in  the  matter  of  William  A.  Bowles.  11 

near  the   city  of  Indianapolis,  Indiana,  on^or  about  the  16th  day  of 
May,  1864. 

HENRY  L.  BURNETT, 

Judge  Advocate,  Department  of  the 

31  Ohio  and  Northern  Department. 

And  said  Exhibit  B  follows,  in  these  words  and  figures,  to  wit: 

Copy  of  order. 

[Special  Orders  No.  129.] 

Headquarters  District  of  Indiana, 

Indianapolis,  September  17,  1864. 
A  military  commission  is  constituted  to  meet  at  the  United  States 
court-rooms  in  the  city  of  Indianapolis,  on  the  nineteenth  (19th)  day 
of  September,  1864,  at  10  o'clock  a.  m.,  or  as  soon  thereafter  as  prac- 
ticable, for  the  trial  of  Harrison  H.  Dodd  and  such  other  prisoners  as 
may  be  brought  before  it. 

Detail  for  the  commission. — 1.  Brevet  Brigadier  General  Silas  Col- 
grove.  United  States  volunteers;  2.  Colonel  Wm.  E.  McLean,  43d 
infantry  Indiana  volunteers;  3.  Colonel  Jbbn  T.  Wilder,  ITth  infan- 
try Indiana  volunteers;  4  Colonel  Thomas  J.  Lucas,  16th  infantry 
Indiana  volunteers;  5.  Colonel  Charles  D.  Murray,  89th  infantry  In- 
diana volunteers;  6.   Colonel  Benjamin  Spooner,  83d  infantry 

32  Indiana  volunteers;  7.  Colonel  Richard  P.  De  Hart,  128th  in- 
fantry Indiana  volunteers;  Major  Henry  L.  Burnett,  judge  ad- 
vocate, department  Ohio  and   northern  department,  judge  advocate. 
The  commission  will  sit  without  regard 4o  hours. 

By  order  of  Brevet  Major  General  Alvin  P.  Hovey. 

AND.   C.  KEMPER, 
Assistant  Adjutant  General . 

The  said  commission  was  subsequently  enlarged  by  the  appoint- 
ment as  members  thereof  of  the  following  named  officers:  Colonel 
Andrew  A.  Stevens,  veteran  reserve  corps;  Colonel  Ansel  D.  Wass, 
60th  infantry  Massachusetts  volunteers;  Colonel  Thomas  W.  Bennett, 
69th  infantry  Indiana  volunteers;  Colonel  Reuben  Williams,  12th  in- 
fantry Indiana  volunteers;  and  Lt.  Colonel  Albert  Heath,  100th  in- 
fantry Indiana  volunteers. 

A  true  copy. 

J.  W.   GORDON. 

And  said  Exhibit  C  follows,  in  these  words  and  figures,  to  wit: 

33  [General  court-martial  Orders  No.  214.  ] 

War  Department, 
Adjutant  GeneraV s  Office,   Washington,  3Iay  2,  1865. 

1.  Before  a  military  commission  w^hich  convened  at  Indianapolis, 
Indiana,  October  19,  1864,  pursuant  to  Special  Orders  No.  129,  dated 
September  17,  1864;  No.  132,  dated  September  21,  1864;  No.  142. 
dated  October  5,  1864;  No.  153,  dated  October  18,    1864;  and  No. 


12  Ex  parte,  in  the  matter  of  William  A,  Bowles, 

154,  dated  October  19,  1864,  headquarters  district  of  Indiana,  In^ 
dianapolis,  and  of  which  Brevet  Brigadier  General  Silas  Colgrove, 
U.  S.  volunteers,  is  president,  were  arraigned  and  tried  William  A. 
Bowles,  Lambdin  P.  Milligan,  and  Stephen  Horsey,  citizens  of  the 
State  of  Indiana. 

Charge  I.  — "  Conspiracy  against  the  government  of  the  United 
States.'' 

Specification  1st. — In  this:  that  the  said  Wm.  A.  Bowles,  Andrew 
Humphreys,  Horace  Heffren,  Lambdin  P.  Milligan,  and  Stephen  Hor- 
sey  did,  among  themselves,  and  with  Harrison  H.  Dodd,  of  Indiana, 
Joshua  F.  Bullitt,  of  Kentucky,  J.  A.  Barrett,  of  Missouri,  and 
others,  conspire  against  the  government  and  duly  constituted  authori- 
ties of  the  United  States,  and  did  join  themselves  to  and  secretly  or- 
ganize  and   disseminate  a  secret   unlawful  society  or   order 

34  known   as  the  order  of  American  Knights  or    order  of  the 
Sons  of  Liberty,  having  both  a  civil  and  military  organization 

and  jurisdiction,  for  the  purpose  of  overthrowing  the  government  and 
duly  constituted  authorities  of  the  United  States,  at  or  near  Indian- 
apolis, Indiana,  a  State  within  the  military  lines  of  the  army  of  the 
United  States,  and  the  theatre  of  military  operations,  and  which  had 
been  and  was  constantlythreatened  to  be  invaded  by  the  enemy. 
This  on  or  about  the  IGth  day  of  May,  1864. 

Sjjecification  M. — In  this:  that  the  said  Wm.  A.Bowles,  Andrew 
Humphreys,  Horace  Heffren,  Lambdin  P.  Milligan,  and  Stephen 
Horsey,  during  an  existing  rebellion  against  the  government  and  au- 
thorities of  the  United  States,  said  rebellion  claiming  to  be  in  name 
of  and  on  behalf  of  certain  States,  being  a  part  of  and  owing  alle- 
giance to  the  UnitedStates,  did  combine  and  agree  with  one  Harrison 
H.  Dodd,  of  Indiana,  Joshua  F.  Bullitt,  of  Kentucky,  J.  A.  Barrett, 
of  Missouri,  and  others,  to  adopt  and  impart  to  others  the  creed  or 
ritual  of  a  secret  unlawful  society  or  order  known  as  the  or- 

35  der  of  American  Knights  or  order  of  the  Sons  of  Liberty, 
denying  the  authority  of  the  United  States  to  coerce  to  sub- 
mission certain  rebellious  citizens  of  said  United  States,  designing 
thereby  to  lessen  the  power  and  prevent  the  increase  of  the  armies 
of  the  United  States,  and  thereb}^  did  recognize  and  sustain  the  right 
of  the  citizens  and  States  then  in  rebellion  to  disregard  and  resist  the 
authority  of  the  United  States.  This  at  a  period  of  war  and  armed 
rebellion  against  the  authority  of  the  United  States,  at  or  near  the 
city  of  Indianapolis,  Indiana,  a  State  within  the  military  lines  of 
the  army  of  the  United  States,  and  the  theatre  of  military  operations, 
which  had  been  and  was  threatened  to  be  invaded  by  the  enemy. 
This  on  or  about  the  22d  day  of  February,  1864. 

Specification  3c?. — In  this:  that  the  said  Wm.  A.  Bowles,  Andrew 
Humphreys,  Horace  Heffren,  Lambdin  P.  Milligan,  and  Stephen  Hor- 
sey, citizens  of  the  State  of  Indiana,  owing  true  faith  and  allegiance 
to  the  government  of  the  United  States,  and  while  pretending  to  be 
peaceable,  loyal  citizens  of  the  government,  did  secretly  and 

36  covertly  combine,  agree,  and  conspire  among  themselves,  and 
with  one  Harrison  H.  Dodd,  of  Indiana,  Joshua  F.  Bullitt,  of 


\ 


Ex  parte  J  in  the  matter  of  William  A.  Bowles*  13 

Kentucky,  J.  A.  Barrett,  of  Missouri,  and  others,  to  overthrow  and 
render  powerless  the  government  of  the  United  States,  and  did,  in 
pursuance  of  said  combination,  agreement,  and  conspiracy,  form  and 
organize  a  certain  unlawful  secret  society  or  order,  and  did  extend 
and  assist  in  extending  said  unlawful  secret  society  or  order  known 
as  the  order  of  American  Knights  or  order  of  Sons  of  Liberty, 
whose  intent  and  purpose  was  to  cripple  and  render  powerless  the 
efforts  of  the  government  of  the  United  States  in  suppressing  a  then 
existing  formidable  rebellion  against  said  government.  This  on  or 
about  the  1st  day  of  October,  1863,  at  a  period  of  war  and  armed  re- 
bellion, at  or  near  the  city  of  Indianapolis,  Indiana,  a  State  within 
the  military  lines  of  the  army  of  the  United  States,  and  the  theatre 
of  military  operations,  which  had  been  and  was  constantly  threatened 
to  be  invaded  by  the  enemy. 

37  Specification  4:th. — In  this:  that  the  said  William  A.  Bowles, 
Andrew  Humphreys,  Horace  Ileffren,  Lambdin  P.   Milligan, 

and  Stephen  Horsey  did  conspire  and  agree  with  Harrison  H.  Dodd, 
David  P.  Yeagle,  John  C.  Walker,  and  Joshua  F.  Bullitt,  and  others, 
(these  men  at  that  time  holding  military  positions  and  rank  in  a  cer- 
tain secret  unlawful  society  or  organization  known  as  the  order  of 
American  Knights  or  order  of  the  Sons  of  Liberty,)  to  seize  by  force 
the  United  States  and  State  arsenals  at  Indianapolis,  Indiana,  Colum- 
bus, Ohio,  and  Springfield,  Illinois;  to  release  by  force  the  rebel 
prisoners  held  by  the  authorities  of  the  United  States,  at  Rock  Island 
and  Camp  Douglas,  Illinois,  Camp  Morton,  Indiana,  and  Camp  Chase, 
Ohio,  and  the  depot  of  prisoners  of  war  on  Johnson's  Island,  and  arm 
those  prisoners  with  the  arms  thus  seized;  and  that  then  said  con- 
spirators, with  all  the  forces  they  were  able  to  raise  in  the  secret 
order  above  named,  were,  in  conjunction  with  the  rebel  prisoners 
thus  released  and  armed,  to  march  into  Kentucky  and  Missouri,  and 
co-operate  with  the  rebel  forces  to  be  sent  to  those  States  by 

38  the  rebel   authorities  against  the  govefliment  and  authorities 
of  the  United  States.     This  on  or  about  the  20th  day  of  July, 

1864,  at  a  period  of  war  and  rebellion  against  the  authority  of  the 
United  States,  at  or  near  the  city  of  Chicago,  Illinois,  a  State  within 
the  lines  of  the  rrmy  of  the  United  States,  and  the  theatre  of  military 
operations,  and  threatened  by  invasion  of  the  enemy. 

Charge  II. — Affording  aid  and  comfort  to  rebels  against  the  au- 
thority of  the  United  States. 

Specification  1st. — In  this:  that  the  said  William  A.  Bowles,  Andrew 
Humphreys,  Horace  Ileffren,  Lambdin  P.  Milligan,  and  Stephen 
Horsey,  being  then  members  of  a  certain  secret,  unlawful  society  or 
order  known  as  the  order  of  American  Knights  or  order  of  the  Sons 
of  Liberty,  the  United  States  being  then  in  arms  to  suppress  a  re- 
bellion in  certain  States  against  the  authority  of  the  United  States, 
(said  William  A.  Bowles,  Andrew  Humphreys,  Horace  Heffren,  Lamb- 
din P»  Milligan,  Stephen  Horsey,  and  others,  then  and  there 

39  acting  as  members  and  officers  of  said  secret  unlawful  society 
or  order,)  did  design  and  plot  to  communicate  with  the  enemies 

of  the  United  States,  with  the  intent  that  they  should  in  large  forc& 


14  Ex  parte  J  in  the  matter  of  WiUiam  A.  Bowles, 

invade  the  territory  of  the  United  States,  to  wit,  the  States  of  Ken- 
tucky, Indiana,  and  Illinois,  with  the  further  intent  that  the  so-called 
secret  unlawful  society  or  order  aforesaid  should  then  and  there  co- 
operate with  the  said  armed  forces  of  the  said  rebellion  against  the 
authority  of  the  United  States,  and  did  communicate  to  said  armed 
forces  the  intent  and  purposes  of  said  secret  unlawful  society  or 
order.  This  at  a  period  of  war  and  armed  rebellion  against  the  au- 
thority of  the  United  States,  at  or  near  the  city  of  Indianapolis,  Indi- 
ana, a  State  within  the  military  lines  of  the  army  of  the  United 
States,  and  the  theatre  of  military  operations,  which  had  been  and  was 
constantly  threatened  to  be  invaded  by  the  enemies  of  the  United 
States.     This  on  or  about  the  16th  day  of  May,  1864. 

Specification   2d. — In  this:  that  the    said  William  A.  Bowles,  An- 
drew Humphreys,  Horace  Heffren,  Lambdin  P.  Milligan,  and 

40  Stephen  Horsey,  while  the  government  was  attempting  by 
force  of  arras  to  suppress  an  existing  rebellion,  while  guer- 
rillas and  other  armed  supporters  of  the  rebellion  were  in  the  State 
of  Kentucky,  did  send  a  messenger  and  brother  member  with  them 
of  a  secret  unlawful  society  or  order  known  as  the  order  of  American 
Knights  or  order  of  the  Sons  of  Liberty,  into  said  State  of  Kentucky, 
with  instructions  for  Josl^a  F.  Bullitt,  grand  commander  of  said  se- 
cret society  or  order  in  said  State,  to  select  good  couriers  or  runners, 
to  go  upon  short  notice,  and,  for  the  purpose  of  assisting  those  in  re- 
bellion against  the  United  States,  to  call  to  arms  the  members  of  said 
secret  society  or  order  and  other  sympathizers  with  the  existing  re- 
bellion whenever  a  signal  should  be  given  by  the  authorities  of  said 
secret  society  or  order.  This  on  or  about  the  20th  day  of  July,  1864, 
at  a  period  of  war  and  armed  rebellion  against  the  authority  of  the 
United  States,   at  or  near  Indianapolis,  Indiana,  a  State  within  the 

military  lines  of  the  army  of  the  United  States,  and  the  theatre 

41  of  military  operations,  and  which  had  been  and  was  constantly 
threatened  to  ba.invaded  by  the  enemy. 

Specification  3(i. — In  this  :  that  the  said  William  A.  Bowles,  An- 
drew Humphreys,  Horace  Heffren,  Lambdin  P.  Millijran,  and  Ste- 
phen Horsey,  being  citizens  of  the  State  of  Indiana,  United  States 
of  America,  and  owing  true  alle2;iance  to  the  said  United  States,  did 
join  themselves  to  a  certain  unlawful  secret  society  or  order  known 
as  the  order  of  American  Knights  or  order  of  Sons  of  Liberty,  de- 
signed for  the  overthrow  of  the  government  of  the  United  States, 
and  to  compel  terms  with  the  cit'zens  or  authorities  of  the  so-called 
Confederate  States,  the  same  being  portions  of  the  United  States, 
and  in  rebellion  against  the  authority  of  the  United  States,  and  did 
communicate  the  designs  and  intent  of  said  order  to  those  in  rebel- 
lion against  the  government  of  the  United  States.  This  on  or  about 
the  20th  day  of  July,  18(i4,  at  a  period  of  war  and  armed  rebellion 
against  the  authority  of  the   United  States,  at  and  near  lu- 

42  dianapolis,   Indiana,   a  State  witin   the   military  lines  of  the 
army  of  the  United  States,  and  the  theatre  of  military  opera- 
tions, and  which  had  been  and  was  constantly  threatened  to  be  in- 
vaded by  the  enemy. 


Ex  parte,  in  the  matter  q^  William  A,  Bowles,  15 

Charge  III. — Inciting  insurrection. 

Specification  \st. — In  this .:  that  the  said  William  A.  Bowles,  An- 
"drew  Humphreys,  Horace  HefFren,  Lambdin  P.  Milligan,  and  Stephen 
Horsey  did,  during  a  time  of  war  between  the  United  States  and  armed 
enemies  of  the  United  States,  andof  rebellion  against  its  government, 
organize  and  attempt  to  arm,  and  did  arm,  a  portion  of  the  citizens  of 
the  United  States,  through  an  unlawful  secret  society  or  order  known 
as  the  order  of  American  Knights  or  ord'er  of  Sons  of  Liberty,  with 
the  intent  to  induce  them,  with  themselves,  to  throw  off  the  authority 
of  the  United  States  and  co-operate  with  said  armed  enemies  of  the 
United  States  against  the  legally  constituted  authorities  of  the  Uni- 
ted States.     This   on  or   about  the  20th  day  of   Jul}^,    1864, 

43  at  or  near  Indianapolis,  Indiana,  a  State  within  the  military 
lines  of  the  army  of  the  United  States,  aud  the  theatre  of  mil- 
itary operations,  and  which  had  been  and  was  constantly  threatened 
to  be  invaded  by  the  enemy. 

Specification  2d. — In  this  :  that  the  said  William  A.  Bowles,  An- 
drew Humpreys,  Horace  Heffren,  Lambdin  P.  Milligan,  and  Stephen 
Horsey  did,  by  public  addresses,  by  secret  circulars  and  communica- 
tions, and  by  other  means,  endeavor  to  and  did  arouse  sentiments 
of  hostility  to  the  government  of  the  United  States,  and  did  attempt 
to  induce  the  people  to  revolt  against  said  government,  and  secretly 
organize  and  arm  themselves  for  the  purpose  of  resisting  the  laws  of 
the  United  States  and  the  orders  of  the  duly  elected  President 
thereof.  This  on  or  about  the  16th  day  of  February,  1864,  at  a  pe- 
riod of  war  and  armed  rebellion  against  the  authority  of  the  United 
States,  at  or  near  Indianapolis,  Indiana,  a  State  within  the 

44  military  lines  of  the  army  of  the  United  States,  and  the  thea- 
tre of  military  operations,  and  which  had  been  and  was  cod- 

«tantly  threatened  to  be  invaded  by  the  enemy. 

Charge  IV. — Disloyal  practices. 

Specification  \st. — In  this  :  that  the  said  William  A.  Bowles,  An- 
drew Humphreys,  Horace  Heffren,  Lambdin  P.  Milligan,  and  Ste- 
phen Horsey,  at  a  time  of  war  and  during  an  armed  rebellion  against 
the  legally  constituted  authorities  and  government  of  the  United 
States,  did  counsel  and  advise  citizens  of,  and  owing  allegiance 
and  military  service  to,  the  United  States,  to  disregard  the  authority 
of  the  United  States,  and  to  resist  a  call  or  draft  designed  to  increase 
the  array  of  the  United  States,  and  did  make  preparation  and  attempt 
to  arm,  and  did  arm,  certain  citizens  of  the  United  States,  belonging 
to  a  certain  unlawful  secret  society  or  order  known  as  the  order  of 
American  Knights  or  order  of  the  Sons  of  Liberty,  for  the  purpose 
and  with  the  intent  of  resisting  said  call  or  draft.     This  on  or 

45  about  the  1st  day  of  July,  1864,  at  or   near  Shoal's  Station, 
Martin  county,  Indiana,  a  State  within  the    military  lines  of 

the  army  of  the  United  States,  and  the  theatre  of  military  operations, 
and  which  had  been  and  was  constantly  threatened  to  be  invaded  by 
the  enemy. 

Specification  2d. — In  this:  that  the  said  William  A.  Bowles,  An- 
drew Humphreys,  Horace  Heffren,  Lambdin  P.  Milligan,  and  Stephen 


16  Ex  parte,  in  the  matter;  of  William  A,  Bowles, 

Horsey,  at  a  time  of  war  and  during  an  armed  rebellion  against  the 
legally  constituted  authorities  and  government  of  the  United  States, 
did  counsel  and  advise  citizens  of,  and  owing  allegiance  and  military 
service  to,  the  United  States,  to  disregard  the  authority  of  the  United 
States,  and  to  resist  a  call  or  draft  designed  to  increase  the  army  of 
the  United  States,  and  did  make  preparation  and  attempt  to  arm,  and 
did  arm,  certain  citizens  of  the  tJnited  States  belonging  to  a  certain 
unlawful  secret  society  of  order  known  as  the  order  of  American 
Knights  or  order  of  the  Sons  of  Liberty,  for  the  purpose  and 

46  with  the  intent  of  resisting  said  call  or  draft.  This  on  or  about 
the  1st  day  of  November,  1863,  at  or  near  Green  Fork  town- 
ship, Randolph  county,  Indiana,  a  State  within  the  military  lines  of 
the  army  of  the  United  States,  and  the  theatre  of  military  operations, 
and  which  had  been  and  was  constantly  threatened  to  be  invaded  by 
the  enemy. 

Specification  3(i. — In  this:  that  the  said  Wm.  A.  Bowles,  Andrew 
Humphreys,  Horace  Heffren,  Lambdin  P.  Milligan,  and  Stephen 
Horsey,  at  a  time  of  war  and  during  an  armed  rebellion  against  the 
legally  constituted  authorities  and  government  of  the  United  States, 
did  counsel  and  advise  citizens  of,  and  owing  allegiance  and  military 
service  to  the  United  States,  to  disregard  the  authority  of  tbe  United 
States,  and  to  resist  a  call  or  draft  designed  to  increase  the  army 
of  the  United  States,  and  did  make  preparations  and  did  attempt  to 
arm,  and  did  arm,  certain  citizens  of  the  United  States  belonging  to 
a   certain  unlawful  secret  society  or  order  known  as  the  order 

47  of  American    Knights  or  order   of    Sons  of  Liberty,  for  the 
purpose  and  with  the  intent  of  resisting  said  call  or  draft. 

This  on  or  about  the  16th  day  of  May,  1864,  at  or  near  Indianapolis, 
Indiana,  a  State  within  the  military  lines  of  the  army  of  the  United 
States,  and  the  theatre  of  miliary  operations,  and  which  bad  been 
and  was  constantly  threatened  to  be  invaded  by  the  enemy. 

Specification  Uli. — In  this:  that  the  said  Wm.A.  Bowles,  Andrew  Hum- 
phreys, Horace  Heffren,  Lambdin  P.  Milligan,  and  Stephen  Horsey^ 
at  a  time  of  war  and  during  an  armed  rebellion  against  the  legally 
constituted  authorities  and  government  of  the  United  States,  did 
counsel  and  advise  citizens  of,  and  owing  allegiance  and  military  ser- 
vice to,  the  United  States,  to  disregard  the  authority  of  the  United 
States,  and  to  resist  a  call  or  draft  designed  to  increase  the  army  of 
the  United  States,  and  did  make  preparation  and  attempt  to  arm, 
and  did  arm,  certain  citizens  of  the  United  States  belonging  to  a  cer- 
tain unlawful  secret  society  or  order  known  as  the   order  of 

48  American  Knights  or  order  of  the  Sons  of  Liberty,  for  the 
purpose  and   with  the  intent  of  resisting  said  call  or  draft. 

This  on  or  about  the  1st  day  of  August,  1864,  at  or  near  Salem, 
Washington  county,  Indiana,  a  State  within  the  military  lines  of  the 
army  of  the  United  States,  and  the  theatre  of  military  operations, 
and  which  had  been  and  was  constantly  threatened  to  be  invaded 
by  the  enemy. 

Specification  5th. — In  this:  that  the  said  Wm.  A.  Bowles,  Andrew 
Humphreys,  Horace  Heffren,  Lambdin  P.  Milligan,  and  Stephen  Hor- 


I 


1 


Ex  parte,  in  the  matter  of  William  A.  Bowles,  IT 

sey  did  accept  and  hold  offices  of  the  military  forces  for  the  State  of 
Indiana,  in  a  certain  unlawful  secret  society  or  order  known  as  the 
order  of  American  Knights  or  order  of  the  Sons  of  Liberty,  which 
said  offices  and  military  forces  were  unknown  to  the  Constitution  and 
laws  of  the  United  'States  or  of  the  State  of  Indiana,  and  were  not 
in  aid  of,  but  opposed  to,  the  legally  codHltnted  authorities  thereof. 
This  on  or  about  the  16th  day  of  Fi^ruary,  1864,  at  a  time  of 
49  war  and  armed  rebellion  against  the' authority  of  the  United 
States,  at  or  near  Indianapolis,  Indiana,  a  State  within  the 
military  lines  of  the  army  of  the  United  States,  and  the  theatre  of 
military  operations,  and  which  had  been  and  was  constantly  threat- 
ened to  be  invaded  by  the  enemy. 

Charge  Y. — Violation  of  the  laws  of  war. 

Specification  1st. — In  this:  that  the  said  William  A.  Bowles,  An- 
drew Humphreys,  Horace  Heflfren,  Lambdin  P.  Milligan,  and  Ste- 
phen Horsey  did,  while  the  government  of  the  United  States  was  car- 
rying on  war  with  the  enemies  of  the  United  States  engaged  in  re- 
bellion against  their  authority,  while  pretending  to  be  peaceable, 
loyal  citizens  of  the  United  States,  violate  their  allegiance,  and  did, 
as  citizens  of  said  government,  attempt  to  introduce  said  enemies  of 
the  United  States  into  the  loyal  States  of  said  United  States,  thereby 
to  overthrow  and  destroy  the  authority  of  the  United  States.  This 
on  or  about  the  16th  day  of  May,  1^64,  at  or  near  the  city  of  Indian- 
apolis, Indiana,  a  State  within  the  military  lines  of  the  army  of  the 
United  States,  and  the  theatre  of  military  operations,  which 
60  had  been  and  was  constantly  threatened  to  ba^  invaded  by 
the  enemy. 

Specification  2d. — In  this :  that  the  said  William  A.  Bowles,  An- 
drew Humphreys,  Horace  Heffren,  Lambdin  P.  Milligan,  and  Ste- 
phen Horsey  did,  during  a  war  between  the  United  States  and  the 
said  enemies  of  the  United  States  engaged  in  rebellion  against  their 
authority,  and  while  pretending  to  be  peaceable,  loyal  citizens  of  the 
United  States,  organize  and  extend  a  certain  unlawful  secret  society  or 
order  known  as  the  order  of  American  Knights  or  order  of  the  Sons 
of  Liberty,  having  for  its  purpose  the  same  general  object  and  de- 
sign as  the  said  enemies  of  the  United  States,  and  with  the  intent  to 
aid  and  insure  the  success  of  said  enemies  in  their  resistance  to  the 
legally  constituted  authorities  of  the  United  States.  This  at  or  near 
the  city  of  Indianapolis,  Indiana,  on  or  about  the  16th  day  of  May, 
1864. 

To  which  charges  and  specifications  the  accused,  William  A.  Bowles, 
jLambdin  P.  Milligan,   and  Stephen  Horsey,  citizens  of  the  State  of 

Indiana,  pleaded  "not  guilty.^' 
51  Finding. — The  court  having  maturely  considered  the  evi- 

dence adduced,  finds  the  accused,  William  A.  Bowles,  Lambdin 
P.  Milligan,  and  Stephen  Horsey,  citizens  of  the  State  of  Indiana,  as 
follows  : 

In  the  cases  of  William  A.  Bowles  and  Lambdin  P.  Milligan,  citizens 
of  the  State  of  Indiana  : 
Kec.  365—2 


18  Ex  parte,  in  the  matter  of  William  A,  Bowles. 

Charge  1. — Of  the  1st  specification,  "guilty;"  of  the  2d  specifica- 
tion, "guilty  j'^  of  the  3d  specification,  "guilty/'  of  the  4th 
specification,   "  guilty  ;''   of  the  charge,  "guilty/ ' 

Charge  11. — Of  the  1st  specification,  "guilty  ;"  of  the  2d  specifi- 
cation, "guilty  f  of  the  3d  specification,  "guilty  j''  of  the  charge, 
"guilty/-'  IM 

Charge  III. — Of  the  Is^ specification,  " guilty ;''  of  the  2d  speci- 
fication, "guilty;''   of  the  charge,  "guilty." 

Charge  IV. — Of  the  |^  specification,  "guilty;"  of  the  2d  speci- 
fication, "guiltj^P  of  the  3d  specification,    "guilty;"  of  the 

52  4th  specification,  "guilty;"  of  the  5th  specification,   "guilty;" 
of  the  charge,  "guilty." 

Charge  V. — Of  the  1st  specification,  "guilty;"  of  the  2d  specifica- 
tion, "guilty;"  of  the  charge,  "guilty." 

In  the  case  of  Stephen  Horsey,  of  the  State  of  Indiana : 

Charge  I. — Of  the  1st  specification,  "guilty;"  of  the  2d  specifica- 
tion, "guilty;"  of  the  3d  specification,  "guilty;"  of  the  4th  speci- 
fication, "guilty;"  of  the  charge,   "guilty." 

Charge  11. — Of  the  li8^p%#fiftation,  "guilty;"  of  the  2d  specifica- 
tion, "guibj-;"  of  the  3d  specification,  "guilty;"  of  the  charge, 
"guilty."*^ 

Charge  111. — Of  the  1st  specification,  "guilty;"  of  the  2d  speci- 
fication, "guilty;"  of  the  charge,  "guilty." 

Charge  III. — Of  the  1st  specification,  "guilty;"  of  the  2d  speci- 
fication, "guilty;"  of  the  3d  specification,  "guilty;"  of  the 

53  4th  specification,    "guilty;"  .of  the  5th  specification,    "not 
guilty;"  of  the  charge,  "guilty." 

Charge  V. — Of  the  1st  specification,  "guilty;"  of  the  2d  specifica- 
tion, "  guilty;"  of  the  charge,  "guilty." 

Sentence. — And  the  commission  does  therefore  sentence  them,  Wil- 
liam A.  Bowles,  Lam^ii^'P.  Milligan,  and  Stephen  Horsey,  citizens 
of  the  State  of  Indiana,  as  follows  : 

In  the  case  of  William  A.  Bowles,  gitizen  of  the  State, of  Indiana: 
"  To  be  hanged  by  the  neck  until  he  be  dead,  at  such  time  and  place 
as  the  commanding  general  of  this  district  shall  designate;  two-thirds 
of  the  members  of  the  commission  concurring  therein." 

In  the  case  of  Lambdin  P.  Milligan,  citizen  of  the  State  of  Indi- 
ana: "  To  be  hanged  by  the  neck  until  he  be  dead,  at  such  time  and 
place  as  the  commanding  general  of  this  district  shall  designate;  two- 
thirds  of  the  members  of  the  commission  concurring  therein." 

54  In  the  case  of  Stephen  Horsey,  citizen  of  the  State  of  In- 
diana: "To  be  hanged  by  the  neck  until  he  be  dead,  at  such 

time  and  place  as  the  commanding  general  of  this  district  shall  desig- 
nate; two-thirds  of  the  members  of  the  commission  concurring 
therein." 

II.  The  proceedings,  findings,  and  sentences  of  the  commission  in 
the  cases  of  William  A.  Bowles,  Lambdin  P.  Milligan,  and  Stephen 
Horsey,  citizens,  were  approved  by  the  proper  commanders,  and  the 
records  forwarded  for  the  action  of  the  President  of  the  United 
States,  who  approves  the  sentences  and  directs  that  they  be  carried 


Ex  'parte,  in  the  matter  of  WiUiam  A,  Bowles,  19 

into  execution  by  the  commanding  general  of  the  district  of  Indiana, 
under  the  orders  of  the  department  commander,  without  delay. 
By  order  of  the  Secretary  of  War.      n 

W.  A.  NICHOLS, 


Official 


Report  receipt  and  execution. 


istant  Adjutant  General, 


.  A.  NICHOLS, 
Assistant  Adjutant  General, 


Com^d^g  Gen^l  Northern  DepH. 


55  And  afterwards,  to  wit,  at  the  court  aforesaid,  and  before 
the  judges  aforesaid,  such  proceedings  were  had  in  the  cause 

above  entitled  that  on  the  llth  day  of  May,  in  the  year  1865,  comes 
the  said  William  A.  Bowles,  by  J.  A.  Gordon,  his  attorney,  and  moves 
the  court  that  a  writ  of  habeas  corpus  do  issue,  according  to  the  prayer 
of  said  petition;  and  said  Bowles,  by  his  attorney  aforesaid,  also 
prays  that  he  be  ordered  to  be  discharged,  according  to  the  prayer 
of  said  petition.  «»; 

And  these  motions  coming  on  to  be  argued  at  this  term,  it  occurred 
as  a  question  whether,  upon  the  facts  set  forth  in  said  petition  and 
exhibits,  a  writ  of  habeas  corpus^  as  prayed  in  said  petition,  ought  to 
be  issued;  and  also,  whether  on  the  facts  stated  in  said  petition  and 
exhibits,  the  said  Bowles  ought  to  be  discharged,  as  in  ^;aid  petition 
prayed;  and  also,  whether  upon  the  facts  stated  in  said  f)etition  and 
exhibits,  the  said  military  commission  mentioned  therein  had  any 
jurisdiction  to  try  and  sentence  said  Bowles  in  manner  and  form  as  in 
said  petition  and  exhibits  stated. 

56  On  which  questions  the  opinions  of  the  judges  were  op- 
posed. 

Whereupon,  on  motion  of  the  said  Bowles,  by  his  attorney  afore- 
said, it  is  ordered  that  the  said  petition  and  exhibits,  together  with 
the  following  questions,  be  certified  to  the  Supreme  Court  of  the 
United  States  for  their  decisions,  according  to  the  act  of  Congress  in 
such  case  made  and  provided;  which  questions  are  these: 
*  1.  On  the  facts  stated  in  said  petition  and  exhibits,  ought  a  writ 
of  habeas  corpus  to  be  issued  according  to  the  prayer  of  said  petition  ? 

2.  On  the  facts  stated  in  said  petition  and  exhibits,  ought  the  said 
William  A.  Bowles  to  be  discharged  from  custody,  as  in  said  petition 
prayed  ? 

3.  Whether,  upon  the  facts  stated  in  said  petition  and  exhibits,  the 
military  commission  mentioned  therein  had  jurisdiction  to  try  and 
sentence  said  Bowles  in  manner  and  form  as  in  said  petition  and  ex- 
hibits is  stated. 

57  In  the  eighth  judicial  circuit,  district  of  Indiana. 

I,  John  D.  Howland,  clerk  of  the  circuit  court  of  the  United  States 
in  the  circuit  and  district  aforesaid,  do  hereby  certify  that  the  above 


20  Ex  parte,  in  the  matter  of  William  A.  Boioles. 

and  foregoing  is  a  full,  true,  and  complete  transcript  of  the  record  of 
the  case  above  entitled,  and  of  all  entries  and  papers  therein,  as 
fully  as  the  same  remain  of  ^ord  and  on  file  in  my  office. 

In  testimony  whereof,  I JK  hereto  set  my  hand  and  affix  the  seal 
of  said  court,  at  Indianapoli^Rhis  13th  day  of  May,  A.  D.  1865. 

[SEAL.]  J  ^B  J.  D.  ROWLAND,  Chrh.. 


0^6, 


[5-cent  revenue  stamp,  c 

Filed  January  12,48 


© 


]omj^y 


SUPREME  COURT 


m 


m 


m 

m 
II, 

Si 


m  tlxt  mwxUA  states 


m^. 


m 


IN    THE    MATTER    OF 
Under  Sentence  hy  Military  Commission. 


15        AEGUMENT    OF    DAVID    DUDLEY    FIELD,   ESQ. 


FOR    THE    PETITTOXKR!<. 


JVCa^rcln.    IS    aiad    13^    1866. 


[Eepoeted  by  D.  F.  Murphy.] 


NEW    YORK: 
PRINTED    BY    WILLIAM    J.    READ, 

AT    BROWNSON'S    STEAM    BOOK,  AND    JOB    PRINTING    OFFICE. 

No.  45  Fulton  Street  (near  Pearl). 


1866. 


if 


ieij. 

I 


OK   THK 


jyo. 

Division 
Range 

Shelf 

Received 


PRESENTED  TO  TfitE  i^ 


|L!b|oftyniversit|ofCalitta,l 


I  .^^.^.^^.. t:t:^jji_ 


ARGUMENT 


OF 


DAVID  DUDLEY  FIELD,  ESQ, 


BEFORE    THE 


^ttpteme  &mxt  0f  t\u  %.  3. 


March   12th   mid    ISthy    1866, 


IN    THE    MATTER    OF 

L.   P.   MILLIGAN,  Petitionee,  ex  pa rie, 
W.    A.    BOWLES, 
STEPHEN    HORSEY,     " 


[Reported  by  D.  F.  Murphy.] 


Mr.  Field — If  the  Court  please : 

Before  I  say  anything  else,  let  me,  on  behalf  of  my 
brethren  and  myself,  thank  the  Court  for  its  indulgence, 
both  in  respect  to  the  early  argument  of  these  cases,  and 
in  respect  to  the  time  allowed  for  their  discussion.  While 
we  are  aware  that,  but  for  the  magnitude  of  the  eases 
themselves,  this  indulgence  would  not  have  been  granted, 
we  are  none  the  less  sensible  of  your  courtesy  and  kind- 
ness. 

Let  me  say  next,  that  some  things  have  been  brought 
into  this  discussion  which  have  no  proper  place  in  it, 
and  which,  for  my  part,  I  shall  endeavor  to  keep  out  of 
it.  I  shall  presently  state  what  I  suppose  the  question 
to  be  ;   I  will  first  state  what  it  is  not : 

It  is  not  a  question  of  the  discipline  of  camps ;  it  is 
not  a  question  of  the  government  of  armies  in  the  field ; 
it  is  not  a  question  respecting  the  power  of  a  conqueror 
over  conquered  armies  or  conquered  States.  What 
may  or  may  not  be  the  rightful  interference  of  the  mili- 
tary in  the  States  lately  in  rebelHon — to  what  extent  they 
may  go,  how  long  continue,  and  when  and  how  cease  to 
act — are  not  questions  in  this  case. 

Nor  is  it  a  question,  as  my  learned  friend  who  opened 
the  cause  on  the  other  side  (Gen.  Butler)  stated,  what 
shall  be  the  condition  of  the  emancipated  slaves.  Tbeir 
freedom  is  placed  beyond  all  peradventure  by  the  great 
constitutional  amendment,  if  we  shall  be  so  happy  as  to 
preserve  the  Constitution  itself  intact  and  supreme. 

Nor  is  it  a  question,  how  far  the  legislative  department 
of  the  government  can  deal  with  the  question  of  niarti.d 
rule.  Whatever  has  been  done  in  these  cases  nas  been 
done  by  the  executive  department  alone.  It  did  not  w^ait 
for  Congress  to  act,  and  when  Congress  acted  it  did  not 
regard  its  action.  When  the  judiciary  acted,  it  did  not 
respect  its  mandate.  It  disregarded  the  authority  of 
ihe  learned  judge  in  the   First   Circuit;  it  disregarded 


the  authority  of  the  late  Chief  Justice  in  the  Fourth 
Circuit ;  and  I  believe  it  is  well  understood,  that  if  the 
habeas  corpus  in  these  cases  had  been  issued,  it  would 
have  been  disregarded. 

Nor,  may  it  please  the  Court,  is  it  a  question  of  the  patri- 
otism, or  the  character,  or  the  services  of  the  late  Chief 
Magistrate,  or  of  his  constitutional  advisers.  It  is  known 
to  you,  sir  (addressing  the  Chief  Justice),  that  I  ven- 
tured to  call  myself  a  personal  friend  of  the  late  President, 
and  I  was  happy  to  believe  that  he  so  regarded  me.  I  did 
not  conceal  from  him  my  dislike  and  fear  of  the  extent 
to  which  some  of  his  subordinate  officers  were  carrying 
the  military  power  ;  but  this  did  not  diminish  my  per- 
sonal regard  for  him,  nor,  as  I  believe,  his  friendship  for 
me.  His  great  heart,  his  forgiving  spirit,  his  sagacious 
touch  of  the  chords  of  public  sentiment,  and  his  unex- 
ampled patience  made  him  a  popular  idol,  and  the 
manner  of  his  death  canonized  him.  He  is  far  above  any 
praise  or  blame  of  miue.  The  quiet  grave  where  he  re- 
poses after  the  storm  of  this  awful  conflict,  will  be  a 
shrine  for  his  countrymen,  so  long  as  they  have  a  country ; 
and  the  swarthy  race,  which  he  did  so  much  to  emanci- 
pate, will  visit  it  in  long  succession,  through  uncounted 
ages,  as  the  burial  place  of  their  deliverer. 

Nor  do  we  cast  any  reflection  upon  the  Secretary  of 
War.  It  has  been  my  fortune  to  be  with  him  in  some 
of  the  darkest  hours  of  the  tempest,  and  I  can  bear 
personal  witness  to  his  indomitable  energy,  to  the  erect 
tront  which  he  maintained  against  all  disaster,  to  his 
industry  which  knew  no  weariness,  and  his  absolute 
devotion  to  the  public  service.  Next  to  the  President 
himself,  and  to  the  illustrious  man  who  organized  that 
gigantic  system  of  finance  which  carried  us  through  the 
war  without  a  shock  to  the  public  credit,  to  the  amaze- 
ment of  the  Old  World,  and  the  admiration  of  the  New ; 
next,  I  say,  after  the  great  President  and  his  minister  of 
finance,  the  countr}^  owes  more  to  the  Secretary  of  War 
than  to  any  other  civilian.  His  services  may  be,  for 
the  time,  lost  in  the  blaze  of  military  glory.  His  la- 
borious days,  and  the  plain  building  where  he  passed 


tlieiii,  are  now  eclipsed  by  the  clouds  that  rolled  from 
the  fields  of  Yicksburg  and  Shiloh,  from  Oettysburgh 
and  Antietam,  from  Atlanta  and  Petersburg  ;  but  when 
history  writes  the  record  of  this  war,  we  shall  find 
there,  in  light,  the  name  of  Edwin  M.  Stanton. 

It  would  hardly  be  respectful  in  me  to  disclaim,  for 
these  cases,  in  this  presence,  all  political  significance 
whatever.  The  characters,  and  the  general  party 
affinities  of  the  different  counsel,  are,  of  themselves,  a 
sufficient  guarantee  against  it.  Not  to  speak  of  the 
other  counsel,  we  have,  on  one  hand,  the  General, 
(Butler,)  whose  services  in  the  beginning  of  the  war, 
and  his  promptitude  in  coming  to  the  rescue  of  this 
capital,  and  whose  administration  in  the  department  of 
tiie  Gulf,  make  a  part  of  the  history  of  the  country  ; 
while,  on  the  other  hand,  we  have  the  General  (Garfield) 
who,  in  the  disastrous  day  of  Chickamauga,  stood  by 
the  side  of  Thomas,  when,  with  his  indomitrable  infantry 
he  rolled  back  the  successive  charges  of  the  rebel  bat- 
talions. 

This  is  a  question  which  concerns  the  future,  rather 
than  the  past ;  what  is  to  be,  more  than  wTiat  has  been. 
What  is  done,  is  done  ;  gone  forever  into  the  unchange- 
able and  inexorable  past.  But  the  present  is  here,  and 
the  future  is  before  us.  For  one,  so  glad  am  I  to  have 
emerged  from  the  thick  darkness  of  war,  into  this  abun- 
dant light  of  peace,  and  so  confident  am  I  of  the  policy 
of  forgiveness  or  oblivion,  that  I  am  willing  to  agree, 
with  all  my  brethren,  to  let  by-gones  be  by-gones,  now 
and  evermore. 

Hire  are  three  men  suffering  in  prison,  who  claim  that 
they  are  held  by  unlawful  force.  This  claim  must  be 
heard.  The  American  people,  speaking  through  an 
amendment  of  their  organic  law,  have  just  proclaimed 
with  a  louder  voice  than  ever  the  right  of  every  human 
being  to  be  free,  except  in  punishment  for  crime,  whereof 
he  shall  have  been  duly  convicted. 

For  the  future,  who  can  tell  what  may  happen  in  a 
year,  or  a  month,  or  a  day.  Our  country  is  ninety  years 
old,  and  sixteen  of  them  were  years  of  war.     It  is  hardly 


6 


supposable,  that  we  are  to  have  hereafter  so  large  a  pro- 
portion of  peaceful  days.  Even  now  a  warlike  nation  is 
encamped  upon  our  southern  border,  and  it  requires  all 
tlie  wisdom  of  the  most  prudent  men  at  this  capitol  to 
prevent  a  collision  on  the  Kio  Grande.  It  behoves  us  to 
know  what  are  to  be  our  rights  if  war  breaks  out  with 
France. 

Is  it  true  that  the  moment  a  declaration  of  war  is  made, 
the  executive  department  of  this  government,  without  an 
Act  of  Congress,  becomes  absolute  master  of  our  liber- 
ties and  our  lives  ?  Are  we  then  subject  to  martial  rule, 
administered  by  the  President  upon  his  own  sense  of  the 
exigency,  with  nobody  to  control  him,  and  with  every 
magistrate  and  every  authority  in  the  land  subject  to  his 
will  alone  ? 

We  may  have  bad  Presidents,  arbitrary  Secretaries  of 
War,  and  cruel  generals.  Let  us  understand  beforehand 
whether  a  state  of  war  makes  them  our  masters.  These 
are  the  considerations  which  give  to  these  cases  their 
greatest  significance. 

But  we  are  met  with  the  peeliminaey  objection,  that 
great  and  pressing  as  they  are,  you  cannot  consider 
them  for  want  of  jurisdiction.  The  objection  is  two- 
fold :  first,  that  the  Circuit  Court  of  Indiana  had  not 
jurisdiction  to  hear  the  cases  there  presented ;  and, 
second,  that  this  Court  has  not  jurisdiction  to  hear  and 
decide  the  questions  thus  certified. 

First,  as  to  the  jurisdiction  of  the  Circuit  Court.  That 
depended  on  the  14th  Section  of  the  judiciary  act  of 
1789,  and  on  the  Habeas  Corpus  Act  of  1863. 

The  first  clause  of  the  I4th  Section  is  as  follows  :  "  All 
the  before-mentioned  Courts  of  the  United  States  shall 
liave  power  to  issue  writs  of  scire  facias,  habeas  corjnis, 
and  all  other  writs  not  specially  provided  for  by  sta- 
tutes, which  may  be  necessary  for  the  exercise  of  their 
respective  jurisdictions  and  agreeable  to  the  principles 
and  usages  of  law."  This  was  held  in  Bollman's  case, 
4  C ranch,  75,  to  authorize  the  writ  only  in  aid  of  a  juris- 
diction otherwise  given.  Then  comes  the  second  clause 
in  these  words : 


"  And  that  either  of  the  justices  of  the  Supreme  Court, 
as  well  as  the  judges  of  the  District  Courts  shall  have 
power  to  grant  writs  of  habeas  corpus  for  the  purpose  of 
an  inquiry  into  the  cause  of  commitment."  This  clause 
was,  in  the  same  case,  held  to  authorize  the  Courts,  as 
well  as  the  judges,  to  issue  the  writ  for  the  purpose  of 
enquiring  into  the  cause  of  commitment. 

"It  would  be  strange,"  said  Chief  Justice  Marshall, 
"  if  the  Judge,  sitting  on  the  Bench,  should  be  unable  to 
hear  a  motion  for  this  writ,  when  it  might  be  openly 
made  and  openly  discussed,  and  might  yet  retire  to  his 
chamber,  and  decide  upon  the  motion.  This  is  not  con- 
sistent with  the  genius  of  our  legislation,  nor  with  the 
course  of  judicial  proceedings."  Under  this  section, 
therefore,  the  jurisdiction  of  the  Circuit  Court  should 
seem  to  be  complete. 

The  Act  of  March  3, 1863,  after  providing  that  the  Sec- 
retaries of  State  and  of  War  shall  furnish  to  the  Judges 
of  the  Circuit  and  District  Courts  a  list  of  political  and 
State  prisoners,  and  of  all  others,  except  prisoners  of  war, 
goes  on  to  declare,  that  if  a  Grand  Jury  has  had  a  ses- 
sion, and  has  adjourned  without  finding  an  indictment, 
thereupon  "  it  shall  be  the  duty  of  the  Judge  of  said 
Court  forthwith  to  make  an  order  that  any  such  prisoner 
desiring  a  discharge  from  said  imprisonment,  be  brought 
before  him  to  be  discharged."  The  next  section  provides 
that,  if  the  list  is  not  furnished,  any  citizen  may  apply 
for  the  relief  of  the  person  imprisoned,  "by  a  petition 
alleging  the  facts  aforesaid." 

Upon  this  act,  the  objection  of  my  learned  friend 
is,  first,  that  the  application  of  the  petitioner  should 
have  been  made  to  one  of  the  Judges  of  the  Circuit,  in- 
stead of  the  Court  itself ;  and  second,  that  the  petition 
does  not  show  whether  it  was  made  under  the  second  or 
the  third  section. 

To  the  former  objection  the  answer  is,  first,  that  the 
decision  in  BoUman's  case,  just  mentioned,  covers  this 
case,  and  that  the  same  reasoning  which  gives  the 
Court  power  to  proceed  under  the  fourteenth  section  of 
the  Act  of  1789,  gives  the  Court  power  to  proceed  under 


8 


the  second  and  third  sections  of  the  act  of  1863.  The 
second  answer  is  that,  by  the  provisoes  of  the  second 
section,  the  Court  is  expressly-  mentioned  as  having  the 
power,  thus— 

''Provided,  Jwivever,  That  no  person  shall  be  discharged 
by  virtue  of  the  provisions  of  this  act,  until  after  he  or 
she  shall  have  taken  an  oath  of  allegiance  to  the  Govern- 
ment of  the  United  States,  and  to  support  the  Constitu- 
tion thereof ;  and  that  he  or  she  will  not  hereafter,  in 
any  way,  encourage,  or  give  aid  and  comfort  to  the  pres- 
ent rebellion,  or  the  supporters  thereof." 

"And  provided  also,  That  the  Judge  or  Court  before 
whom  such  person  may  be  brought,  before  discharging 
him  or  her  from  imprisonment,  shall  have  power,  on  ex- 
amination of  the  case,  and,  if  the  public  safety  shall  re- 
quire it,  shall  be  required  to  cause  liim  or  her  to  enter 
into  recognizance,  with  or  without  surety,  in  a  sum  to 
be  fixed  by  said  judge  or  Court,  to  keep  the  peace  and 
be  of  good  behavior  towards  the  United  States  and  its 
citizens,  and  from  time  to  time,  and  at  such  times  as  such 
Judge  or  Court  may  direct,  appear  before  said  Judge  .or 
Court  to  be  further  dealt  with,  according  to  law,  as  the 
circumstances  may  require." 

My  learned  friend's  other  objection  to  the  jurisdiction 
of  the  Circuit  Court,  is,  that  the  petition  does  not  show 
under  which  section  of  the  Act  it  was  presented.  It  states 
that  the  petitioner  is  held  a  prisoner  under  the  authority 
of  the  President ;  that  a  term  has  been  held,  and  that  a 
grand  jury  has  been  in  attendance  and  has  adjourned 
without  indicting ;  that  is  all.  It  does  not  state  whether 
a  list  has  been  furnished  to  the  Judges  by  the  Secretary 
of  State  and  the  Secretary  of  War,  and  therefore  argues 
the  learned  counsel,  the  Court  has  no  jurisdiction.  That 
is  to  say,  the  judges  knowing  themselves  whether  the  list 
has  or  has  not  been  furnished,  cannot  proceed,  because 
forsooth  we  have  not  told  them  by  our  petition  what  they 
already  know%  and  what  w^e  ourselves  might  not  know^, 
and  perhaps  could  not  know,  because  the  law  does  not 
make  it  necessary  that  the  list  shall  be  filed  or  that  any- 
body shall  be  informed  of  it  but  the  judges. 


There  is  an  old  maxim  of  the  law  which  would  disjjense 
with  the  averment,  even  if  the  fact  were  known  to  the 
petitioners  :  "  lex  non  requirat  verificari  quod  appo/ret 
curice/'—Si  maxim  as  old,  at  least,  as  Coke,  and  given  by 
him  in  9th  Esports,  p.  54.  I  think,  therefore,  I  need  not 
argue  any  further,  that  the  Circuit  Court  of  the  United 
States  for  tlie  District  of  Indiana  had  jurisdiction  upon 
upon  this  petition. 

Next;  as  to  the  jurisdiction  of  this  Court.  Supposing 
the  Circuit  Court  to  have  had  jurisdiction,  has  this  Court 
jurisdiction  to  hear  these  questions  as  tJiey  are  certified  ? 
There  are  various  objections.  First,  it  is  said  that  a  di- 
vision of  opinion  can  be  certified  only  in  a  caiisej  and 
that  this  is  not  a  cause.  You  remember  the  Act  of  1802, 
which  authorized  a  certificate  of  division.  It  is  in  these 
words:  "Whenever  any  question  shall  occur  before  a 
Circuit  Court,  upon  which  the  opinion  of  the  Judges 
shall  be  opposed,  the  point  upon  which  the  disagreement 
shall  happen,  shall,  during  the  same  term,  upon  the  re- 
quest of  either  farty  or  their  counsel,  be  stated  under  the 
direction  of  the  Judges,  and  certified  under  the  seal  of 
the  Court,  to  the  Supreme  Court,  at  their  next  session,  to 
be  held  thereafter,  and  shall,  by  the  said  Court,  he  finally 
decided.  And  the  decision  of  the  Supreme  Court  and 
their  order  in  the  premises  shall  be  remitted  to  the  Cir- 
cuit Court,  and  be  there  entered  of  record,  and  shall  have 
eftect,  according  to  the  nature  of  the  said  judgment 
and  order  ;  provided,  that  nothing  herein  contained  shall 
prevent  tlie  cause  from  proceeding,  if,  in  the  opinion  of 
the  Court,  further  proceedings  can  be,  without  prejudice 
to  the  merits,"  <fec. 

It  was  decided  by  this  Court,  in  Holmes  vs.  Jennison, 
14  Peters,  566,  that  a  proceeding  on  habeas  corpus  is  a 
suit,  and  suit  is  a  more  comprehensive  word  than  cause. 

Mr.  Stanberry  :  Will  the  gentleman  allow  me  a  word  ? 

Mr.  Field  :  Certainly. 

Mr.    Stanberry  :  I   never  said   that  a  habeas   corpus, 
after  the  return,  when  the  parties  appear,  and  begin   to 
to  try  the  case,   is  not  a  suit ;  and  that  was  Holmes  and 
Jennison. 
2 


10 


Mr.  Field  :  Then  the  argument  is  that  it  is  not 
a  cause  until  the  adverse  party  comes  in.  Is  not 
a  suit  commenced  before  the  defendant  is  brought 
into  Court  ?  Is  the  defendant's  appearance  the  first 
proceedng  in  a  cause  ?  When  a  writ  is  issued  to 
the  Sheriff,  we  understand  that  the  statute  of  limita- 
tions ceases  to  run.  But  mj^  learned  friend  must  allow 
me  to  read  some  other  provisions  of  the  statutes  about 
hahecs  corpus.  There  have  been  three  acts,  in  respect  to 
this  writ.  The  first,  of  1789,  which  I  have  already  read  ; 
then  the  Act  passed  in  1833  ;  and  finally  the  Act  of  1842. 
From  the  last  act  I  will  read  the  following  passage  : 

"  Either  of  the  justices  of  the  Supreme  Court  of  the 
United  States,  or  judge  of  any  District  Court  of  the 
United  States,  in  which  a  prisoner  is  confined,  in  addi- 
tion to  the  authority  already  conferred  by  law,  shall  have 
power  to  grant  writs  of  habeas  corpus  in  all  cases  of  any 
prisoner  or  prisoners  in  jail  or  confinement,  where  he, 
she,  or  they  being  subjects  ar  citizens  of  a  foreign  State, 
and  domiciled  therein,  shall  be  committed  or  confined, 
or  in  custody,  under  or  by  any  authority  or  law,  or  pro- 
cess founded  thereon,  of  the  United  States  or  of  any  one 
of  them,  for  or  on  account  of  any  act  done  or  omitted 
under  any  alleged  right,  title,  authority,  privilege,  protec- 
tion, or  exemption,  set  up  or  claimed  under  the  commis- 
sion or  order,  or  sanction  of  any  foreign  state  or  sover- 
eignty, the  validity  and  effect  whereof  depend  upon  the 
law  of  nations,  or  under  color  thereof.  And  upon  the  re- 
turn of  said  writ,  and  due  proof  of  the  service  of  notice 
of  the  said  proceeding  to  the  Attorney  General  or  other 
officer  prosecuting  the  pleas  of  the  State  under  whose  au- 
thority the  petitioner  has  been  arrested,  committed,  or  is 
held  in  custody,  to  be  prescribed  by  the  said  justice  or 
judge  at  the  time  of  granting  said  writ,  the  said  justice 
or  judge  shall  proceed  to  hear  the  said  cause,''  &g.^ 

The  second  objection  of  my  learned  friend  is  that  there 
must  be  parties,  that  is,  at  least  two  parties,  and  that  here 
is  only  one.  This  argument  is  derived  from  the  direction 
in  the  act,  that  the  point  must  be  stated  "  upon  the  re- 
quest of  either  party"  or  their  counsel.     My  friend  says, 


li 


tliat  "either  party"  imports  two,  and  if  there  are  not 
two,  there  can  be  no  certificate.  This  strikes  me  as  al- 
together too  literal  :  "g?<?'  liceret  in  litera  hceret  in  cortice.'* 
The  learned  gentleman  insists  upon  the  grammar,  but 
he  cannot  render  the  language  grammatical  as  it  stands. 
It  is  "either  party  or  their  counsel."  This  is  elliptical ; 
what  is  meant  is,  "any  party  or  parties,  his  or  their 
counsel."  Again  :  "  eithei*,"  if  precisely  used,  w'ould  ex- 
clude all  over  two,  because  ^'  either  "  strictly  means  "  one 
of  two;"  and  if  there  are  three  parties  or  more,  as  there 
may  be,  you  cannot  have  a  certificate !  It  is  not  unusual 
in  proceedings  in  rem  to  have  several  iritervenors  find 
claimants  ;  what  are  we  to  do  then  ?  The  answer  must 
be,  that  "  either"  is  an  equivalent  word  for  "  any ;"  and 
that  whoever  may  happen  to  be  a  party,  whether  he 
stand  alone  or  with  others,  may  ask  for  the  certificate. 

The  words  "either  party"  were  introduced  not  for 
restriction  but  enlargement.  The  purpose  was  to  enable 
any  party  to  bring  the  case  here  ;  otherwise  it  might  have 
been  argued  perhaps  that  all  the  parties  must  join  in 
asking  for  the  certificate.  No,  said  Congress,  any  party 
having  anything  to  do  with  the  case  may  have  it  certified. 

The  reasoning  of  Chief  Justice  Marshall,  in  respect 
to  the  habeas  corpus,  is  here  applicable.  The  words, 
"either  of  the  Justices  of  the  Supreme  Court,"  in  the 
14th  Section  of  the  Act  of  1739,  were  understood  by  him 
to  have  been  used  by  way  of  enlargement,  to  provide  for 
cases  w^hen  the  Court  was  not  sitting ;  and  he  construed 
them,  therefore,  to  embrace  the  Court,  as  well  as  the 
Judge.  So,  here,  the  language  was  introduced  for  the  pur- 
pose of  giving  a  more  extended  application  to  the  Statute. 
The  purpose  of  the  Act  was  to  prevent  a  failure  of  justice, 
when  the  two  Judges  of  the  Cirx3uit  Court  were  divided 
in  opinion.  The  reason  of  the  rule  is  as  applicable  to  a 
case  with  one  party  as  if  there  were  two.  Whether 
a  question  shall  be  certified  to  this  Court,  depends  upon 
the  point  in  controversy.  If  it  concerns  a  matter  of 
right,  and  not  of  discretion,  there  is  as  much  reason  for 
its  being  sent  ex  parte,  as  for  its  being  sent  inter  partes. 
This  very  case  is  an  illustration.     Here  a  writ  is  applied 


12 


for,  or  an  order  is  asked.  The  Judges  do  not  agree 
abaut  the  issue  of  the  writ,  or  the  granting  of  the  order. 
U|3on  their  action,  the  lives  of  these  men  depend.  Shall 
there  be  a  failure  of  justice  ?  The  question  presented  to 
the  Circuit  Court  was  not  a  merely  formal  one  ;  whether 
an  initial  writ  should  issue.  It  is  the  practice,  upon 
petitions  for  habeas  corpus,  to  consider  whether,  upon  the 
facts  presented,  the  prisoners,  if  brought  up,  could  be 
remanded.  The  presentation  of  the  petition  brings 
before  the  Court,  at  the  outset,  the  merits,  to  a  certain 
extent,  of  the  whole  case.  That  was  the  course  pursued 
in  Passmore  Williamson's  case,  1st  Casey ;  in  Rex  vs. 
Ennis,  1  Burrows,  765  ;  in  the  case  of  the  Three  Spanish 
Sailors,  reported  in  2  Wm.  Blackstone,  1324  ;  Hobhouse's 
case,  reported  in  2  Barnewall  &  Alderson,  420 ;  Husted's 
case,  reported  in  1  Johnson,  326 ;  Ferguson's  case,  9 
Johnson,  139 ;  and  in  this  Court,  in  Watkins'  case, 
reported  in  3  Peters,  202,  where  the  disposition  of  the 
case  turned  upon  the  point  whether,  if  the  writ  were 
issued,  the  petitioner  would  be  remanded  upon  the  facts 
as  they  appeared. 

There  may,  indeed,  be  cases  w^here  only  one  party  can 
appear,  cases,  that  are  at  first,  and  must  always  remain 
ex  parte.  What  shall  be  done  with  them?  Such  a  case 
occurred  not  long  ago  in  New  York.  A  statute  was 
passed,  directing  that  students  who  received  a  diploma 
from  Columbia  CoUege,  should  be  admitted  to  the  bar, 
without  further  examination.  A  student  applied  to  the 
Supreme  Court  of  New  York  to  be  admitted.  The  ap- 
plication was  refused.  He  appealed  to  the  Court  of  Ap- 
peals, and  the  order  was  reversed.  Here  was  a  case 
where  there  could  be  but  one  party.  There  was  no  one 
but  the  applicant  before  the  Court,  no  defendant,  no 
contestant.  Suppose  that  a  question  similar  to  that 
which  has  been  argued  here,  in  Mr.  Garland's  case, 
were  to  come  before  a  Circuit  Court,  and  that  the  learned 
Judges  should  be  divided  in  opinion,  upon  the  constitu- 
tionality of  the  test-oath,  I  should  like  to  be  informed, 
by  my  learned  friend,  whether  he  thinks  that  case  could 
not  be  certified  to  this  Court.  Must  the  applicant  be 
told  that  his  application  cannot  be  decided  ? 


13 


There  is  one  view  of  this  case  in  which  it  is  to  be  ro- 
garded  as  essentiallj  ex  parte.  You  will  observe  that  the 
application  was  for  a  writ  of  habeas  corpus  or  for  such 
other  order  or  process  as  the  Court  might  make  for  the 
deliverance  of  the  party.  If  you  allow  the  writ  under  the 
Judiciary  Act,  there  may  be  a  contestant ;  if  you  pro- 
ceed under  the  Act  of  1863,  there  may  not  be  a  contest- 
ant, because  the  Judges  are  bound  to  discharge  upon  the 
fact  of  continued  imprisonment,  without  indictment. 
The  language  of  the  act  is,  that  if  the  list  is  furnished, 
"it  shall  be  the  duty  of  the  Judge  of  said  Court,  forth- 
with to  make  an  order  that  any  such  prisoner  desiring  a 
discharge  from  said  imprisonment,  be  brought  before  him 
to  be  discharged,"  The  third  section  declares,  that  the 
same  thing  shall  be  done  on  the  application  of  a  citizen, 
if  the  list  is  not  furnished.  Suppose  that  the  party  had 
asked  simply  for  the  order..  It  would  have  been  ex  parte 
of  necessity;  the  Government  would  have  had  no  right  to 
be  heard  ;  no  rights  would  have  been  determined,  except 
that  the  man  should  go  discharged  of  the  particular  impris- 
onmentfor  which  he  was  held.  He  might  havebeen  arrested 
the  next  day  ;  he  might  have  been  indicted.  The  law- 
giver says,  you  shall  not  keep  a  man  in  prison  longer  than 
through  the  session  of  a  Grand  Jury,  if  it  has  not  found 
an  indictment  against  him  ;  and  the  moment  the  Grand 
Jury  adjourns,  if  the  Judge  does  not  see  that  there  is  an 
indictment,  he  is  bound  to  discharge  him.  Neither 
General  Hovey,  nor  the  President,  nor  any  other  officer 
of  the  Government  has  a  right  to  be  heard  against  it. 

Thus  far,  I  have  argued  against  this  objection  as  if 
there  had  been  but  one  party  before  the  Court ;  but 
there  w^ere,  in  fact,  two  parties.  Who  were  they  ?  The 
record  tells  us,  in  these  words  : 

"  Be  it  remembered,  that  on  the  10th  day  of  May% 
A.  D.  1865,  in  the  Court  aforesaid,  before  the  Judges 
aforesaid,  comes  Jonathan  W.  Gordon,  Esq.,  of  counsel 
for  said  Bowles,  and  files  here  in  open  Court  the  petition 
of  said  Bowles  to  be  discharged  ^  *  -s^-  -2^  * 
At  the  same  time  comes  also  John  Hanna,  Esq.j  the  attorney 
jprosecuting  the  pleas   of  the   United  States  in  this  behalf. 


14 


And  thereupon,  by  agreement,  tins  application  is  sub- 
mitted to  the  Court,  and  day  is  given,"  &c. 

The  next  day  the  case  came  on  again,  and  the  cer- 
tificate was  made.  My  learned  friend  asks  :  Who  is 
''John  Hanna,  prosecuting  the  pleas  of  the  United 
States  ?"  Who  is  John  Hanna?  May  I  not  as  well  ask 
who  is  the  Attorney  General  of  the  United  States  ?  I 
need  not  say,  that  this  Court,  judicially,  knows  who  is 
the  Attorney  General ;  and  so  the  Circuit  Court,  judi- 
cially, knew  that  John  Hanna  was  the  District  Attorney 
of  the  United  States  for  the  District  of  Indiana ;  and 
their  judicial  knowledge  is  your  judicial  knowledge, 
because  you  are  to  take  all  that  they  knew.  But 
*' prosecuting  the  pleas"  is  an  expression  which  my 
friend  does  not  understand.  He  asks  what  is  meant  by 
prosecuting  the  pleas  of  the  United  States.  Let  me 
see  if  I  cannot  find  something  to  satisfy  him  on  that 
point.  Here  is  tlie  Haheas  Corpus  Act  of  1842,  which 
thus  speaks : 

"  And  upon  the  return  of  the  said  writ,  and  due  proof 
of  the  service  of  notice  of  the  said  proceeding  to  the 
Attorney  General,  or  other  officer  prosecufing  the  pleas  of 
the  State,  under  whose  authority  the  petitioner  has  been 
arrested,"  <fec. 

It  would  not  be  proper  for  me  to  say  what  took  place 
in  the  Circuit  Court,  except  so  far  as  I  get  it  from  the 
record,  I  can  imagine  that,  in  a  case  of  this  gravity, 
the  learned  Judges,  when  the  petition  w^s  presented, 
directed  notice  to  be  given  to  the  law  officer  of  the 
Government, 

Notice,  in  like  cases,  is  directed  to  be  given  by  the 
Statutes  of  Indiana.  They  provide  that,  "when  any 
person  has  an  interest  in  the  detention,  the  prisoners 
shall  not  be  discharged,  until  the  person  having  such 
interest  is  notified ;"  as  you  will  find,  if  you  look  at  the 
Kevised  Statutes  of  Indiana,  page  196,  Section  728. 

In  point  of  fact,  therefore,  this  great  cause  had  all  the 
solemnity  w^iich  two  parties  could  give  it.  The  Gov- 
ernment came  into  Court  and  submitted  the  case  in 
Indiana,  for  the  very  purpose  of  having  it  brought  to 
Washington. 


15 


It  lias  come  here  and  argued  the  case,  by  the  ablest 
counsel  that  could  be  had.  It  has  brought  here,  from 
the  east,  an  able  lawyer  and  gallant  general,  more 
interested  in  the  question  than  any  other  person  in  the 
country  ;  and,  from  the  west,  one  of  its  greatest  advo- 
cates ;  and  with  these  appears  the  Attorney  General  of 
the  United  States.  After  all  this,  is  it  not  trifling  with 
the  Court,  to  say  that  it  cannot  hear  and  decide  this 
cause,  because,  forsooth,  there  is  only  one  party  be- 
fore it ! 

The  third  objection  which  the  learned  counsel  makes 
to  the  jurisdiction  of  this  Court  is,  that  no  questions  can 
be  certified  except  those  which  arise  upon  the  trial. 

To  this  I  answer  first,  that  there  has  been  a  trial,  in  its 
proper  sense,  as  applicable  to  this  case.  The  facts  are 
all  before  the  Court,  A  return  could  not  vary  them. 
The  case  has  been  heard  upon  the  petition,  as  if  that 
contained  all  that  need  be  known,  or  could  be  known. 
The  practice  is  not  peculiar  to  habeas  corpus ;  it  is  the 
same  on  application  for  maudamuSj  or  for  attachments  in 
cases  of  contempt,  in  both  which  cases  the  Court  some- 
times hears  the  whole  matter  on  the  first  motion,  and 
sometimes  postpones  it  till  formal  pleadings  are  put  in. 
In  either  case,  the  result  is  the  same. 

But,  secondly,  if  it  were  not  so,  is  it  correct  to  say 
that  a  certificate  can  onl}-  be  made  upon  a  trial.  To 
sustain  this  position,  the  counsel  refers  to  the  case 
of  Davis  vs.  Bruden,  10  Peters,  289.  But  that  case 
expressly  reserves  the  question.  Let  me  read  from 
page  290  :  "  We  do  not  mean  to  decide,"  say  the  Court, 
"  definitively,  that  no  question  can  be  brought  here  upon 
a  certificate  of  division  of  opinion,  unless  the  point  arose 
upon  the  trial  of  the  cause  ;  but  we  are  very  much 
inclined  to  think  that  such  is  the  true  construction  of 
the  act ;  but,  from  the  general  words  used,  cases  may 
possibly  arise  that  we  do  not  foresee.  "  The  question, 
however,  brought  up  in  the  present  case  being  one  rest- 
ing entirely  in  the  discretion  of  the  Court,  is  clearly  not 
within  the  act." 

So  that  it  has  not  been  decided,  that  the  point  must 


16 


arise  upon  the  trial  of  a  cause.  I  concede  that  it  must 
arise  in  some  part  of  the  cause,  some  place  in  its  pro- 
gress, where  a  material  question  is  brought  before  the 
Court,  not  a  question  resting  in  discretion,  but  a  ques- 
tion of  right  material  to  the  merits  involved,  and  that  I 
suppose  to  be  the  meauing  of  the  learned  judge,  Mr.  Jus- 
tice Thompson,  in  that  opinion. 

My  learned  friend  admits  that  the  question  of  jurisdic- 
tion is  a  question  that  may  be  certified.  The  qualifica- 
tion which  he  insists  upon  is,  that  no  question  can  be 
certified,  unless  it  arose  upon  the  trial  of  the  cause,  or  be 
a  question  of  jurisdiction.  Well,  this  is  a  question  of 
jurisdiction.  It  is  a  question  of  the  jurisdiction  of  the 
Circuit  Court  to  grant  the  writ  of  habeas  corpus,  and  to 
liberate  these  men,  and  that  question,  as  I  shall  show 
you  by  and  by,  brings  up  all  the  other  questions  in 
the  cause. 

The  fourth  objection  to  the  jurisdiction  of  this  Court 
is  that  the  case  must  be  one  in  which  the  answer  to  the 
questions  when  given  shall  he  final ;  that  is  to  say,  the 
questions  come  here  to  be  finally  decided.  What  does 
that  mean  ?  Does  it  mean  that  the  same  thing  can 
never  be  debated  again  ?  Certainly  not.  It  means  that 
the  decision  shall  be  final  for  the  two  judges  who  cer- 
tified the  difference  of  opinion,  so  that  when  the  answer 
goes  down  from  this  Court  they  shall  act  according  to  its 
order,  as  if  they  had  originally  decided  in  the  same  way. 
That  is  all  it  means. 

Mr.  Justice  Nelson  :  Final  upon  the  point  ? 

Mr.  Field  :  Yes,  sir ;  final  upon  the  point.  Why, 
says  the  learned  gentleman,  would  it  not  be  a  monstrous 
hardship,  if  we  were  to  have  an  argument  here  by  amici 
curice,  and  he  thus  calls  himself  and  his  associates, 
which  should  conclude  the  government  in  any  future 
controversy.  I  answer,  the  Court  will  deal  wdtli  this 
decision,  as  they  would  deal  with  any  other  under  like 
circumstances.  It  will  not  be  res  adjudicala  in  the  tech- 
nical sense,  except  in  respect  to  parties  before  the  Court : 
and  if  any  new  party  comes  in,  his  rights  will  not  stand 
pre-judged. 


17 


Mr.  Stanberry  :  Will  you  allow  me,  Mr.  Field,  to  ask 
you  a  question  ? 

Mr.  Field  :  Certainly. 

Mr.  Stanberry  :  If  the  question  certified  here,  whether 
the  military  commission  had  jurisdiction  to  try  these 
men,  be  answered  in  the  affirmative  or  in  the  negative, 
do  you  mean  to  say,  that  when  they  are  brought  in  after- 
wards on  the  writ  and  a  return  is  made,  they  are  con- 
cluded or  not  ? 

Mr.  Field  :  I  mean  to  say  that  the  Court  will  deal  with 
the  case,  just  as  the  Courts  dealt  with  Passmore  William- 
son's case,  and  the  case  in  Burrows,  the  case  in  Barnewall 
and  Alderson,  and  the  other  cases  mentioned.  The 
determination  will  be  as  final  as  any  determination  on 
granting  a  habeas  corpus  can  be.  When  a  habeas  corpus 
is  applied  for,  the  Courts  do  consider  in  the  first  in- 
stance, whether  it  appears  upon  the  facts  stated,  that 
upon  the  coming  in  of  the  return,  the  prisoner  would 
be  remanded.  If  the  learned  counsel's  reasoning  is 
good,  it  would  prevent  a  Judge  from  considering  the  le- 
gality of  the  imprisonment  on  the  application  for  the  writ, 
because  that  question  ought  to  be  kept  open  till  the  party 
is  brought  in,  and  the  return  is  made.  It  is,  however,  as 
well  settled  as  anything  can  be  settled,  not  only  in  the 
State  Courts,  and  in  the  Courts  of  England,  but  in  this 
Court,  that  when  an  application  is  made  for  a  habeas 
corpus,  unless  the  Court  see  that  there  is  color  of  right 
for  the  man  to  be  discharged,  they  will  not  grant 
the  writ,  and  therefore  they  will  go  into  an  examination 
of  the  question,  more  or  less  complete.  Whether  that 
shall  be  so  far  conclusive,  as  that  there  shall  never  be  any 
more  debate  on  the  subject  in  the  progress  of  the  cause, 
is  a  question  which  I  need  not  now  consider. 

Mr.  Black  :  They  are  not  concluded  upon  any  ques- 
tion that  may  be  raised  by  the  return. 

Mr.  Field  :  They  are  not  concluded  on  any  question, 
raised  by  the  return,  which  has  not  been  debated,  and  in 
respect  to  which  they  are  not  parties.  Whether  in  this 
case,  after  the  argument  of  my  learned  friends,  after  the 
efforts  of  the  Government  to  have  the  cause  thoroughly 
3 


18 


defended,  the  question  would  be  reopened,  and  reargued, 
depends  upon  the  Judges,  and  rests  in  their  breasts. 

All  the  effect  to  be  given  to  the  decision  here  is,  that 
the  answer  is  to  stand  as  the  judgment  of  the  Circuit 
Court,  and  is  final  there.  But  the  case  is  always  open 
to  be  changed,  by  any  new  state  of  facts ;  just  as 
questions  certified  upon  a  demurrer,  or  a  plea  to  the 
jurisdiction,  ma}'  be  affected  by  new  facts,  and  the  deci- 
sion once  given  may  fail  of  ending  the  cause. 

The  fifth  objection  to  the  jurisdiction  of  this  Court  is, 
that  the  wdiole  case  is  certified.  I  answer,  that  no 
question  is  certified,  except  those  which  actually  arose 
before  the  Court,  at  the  time,  and  without  considering 
which  it  could  not  move  at  all.  That  is  my  first  answer. 
The  second  is,  that  if  too  much  is  certified,  the  Court  will 
divide  the  questions,  and  answer  only  those  which  it 
finds  to  be  properly  certified,  as  it  did  in  the  Albany 
Bridge  case,  1st  Black,  583.  There  were  several  ques- 
tions in  that  case,  some  of  which  you  held  ought  not  to  have 
been  certified,  and  you  answered  only  those  that  were 
properly  here.  If,  therefore,  you  do  not  choose  to  look 
into  the  question  of  military  commissions  —  though  I 
suppose  you  will  do  so,  for  reasons  which  I  have  in  part 
given,  and  shall  give  more  by  and  by — if  you  merely 
look  at  the  question  of  issuing  the  habeas  corpus,  or  of 
granting  the  order  for  discharge,  the  other  question  may 
remain  open  for  future  debate.  I  will  only  stop  to 
observe,  that  my  learned  friend  can,  with  poor  grace, 
take  an  objection  of  this  sort  here,  since  he  himself 
argued,  that  the  application  for  the  writ  necessarily 
brought  up  the  question  of  the  jurisdiction  of  the 
military  tribunal ;  and  my  learned  friends,  the  Attorney 
General  and  his  associate,  General  Butler,  in  their 
printed  brief,  have  put  themselves  upon  that  point 
distinctly.  This  is  their  language,  as  I  read  it  from 
their  brief  before  me  : 

"  It  is  assumed  to  be  the  well  settled  practice  of  the 
Courts  of  the  Uaited  States,  upon  application  for  a  writ 
of  habeas  corpus,  that  if  it  appear  upon  the  facts  stated 
by  the  petitioner,  all  of  which  shall  be  taken  to  be  true. 


19 


that  he  could  not  be  discliarged  upon  a  return  of  tlie 
writ,  then  no  writ  will  be  issued.  Therefore  the  ques- 
tions resolve  themselves  into  Iwo,  which,  for  convenience 
of  argument,  may  be  reversed  thus  : 

1.  Has  the  Military  Commission  jurisdiction  to  hear 
and  determine  the  case  submitted  to  it  ?" 

Before  I  leave  this  point  let  me  refer  you  to  a  text- 
book which  contains  a  great  number  of  authorities, 
Hurd  on  haheas  covpus,  page  222,  (where  there  is  a  list  of 
cases  too  long  for  me  to  mention,)  further  to  show,  that  it 
is  the  well  settled  law  of  every  State  in  this  Union,  as 
well  as  of  the  United  States,  that,  upon  an  application 
for  a  writ  of  habeas  corpus,  you  will  at  least  look  into  and 
decide  to  a  certain  extent  the  question  of  the  regularity 
or  legality  of  the  commitment,  from  which  the  party 
seeks  to  be  relieved. 

The  last  objection  of  my  learned  friend  to  tlie  jurisdic- 
tion of  this  Court,  is  that  the  case  is  ended  ;  yes,  encleJ^ 
because,  says  he,  it  is  to  be  presumed,  that  these  poor 
unfortunate  men  have  been  hanged.  Is  it  to  be  presumed^ 
that  any  executive  officer  of  tlais  ct)untry,  though  he  may 
claim  to  himself  this  awful  power  of  military  government, 
would  venture  to  put  to  death  three  men,  who  claim  that 
they  are  unjustly  convicted,  and  whose  case  is  considered 
of  such  gravity  by  the  Circuit  Court  of  the  United  States, 
that  it  certifies  the  question  to  the  Supreme  Court  ? 

The  suggestion  is  disrespectful  to  the  executive,  and  I 
am  glad  to  believe  that  it  has  no  foundation  in  fact. 

I  have  thus  gone  through  with  the  preliminary  objec- 
tions to  the  hearing  and  decision  of  these  cases,  and  I 
submit  that  I  have  answered  all  the  objections.  There  is 
nothing  then  in  the  way  of  my  proceeding  to  the  merits, 
and  entering  upon  the  main  argument. 

The  petitioners  are  natives  of  the  United  States,  and 
have  been  many  years  citizens  of  Indiana,  Though  not 
"in  the  land  or  naval  forces  of  the  United  States,"  or 
connected  in  any  way  with  the  public  service,  they  were 
arrested  in  September  and  October,  1864,  at  their  homes 
in  Indiana,  by  order  of  General  Hovey,  commanding  the 
.onilitarj  district  of  Indiana,  taken  to  Indianapolis^  and 


20 


there,  in  October  following  tried  by  a  military  commis- 
sion and  sentenced  to  be  hung.  The  sentences  were 
commuted  to  imprisonment  for  life,  and  they  are  now  in 
the  penitentiary  undergoing  this  imprisonment.  The 
charges  upon  which  they  were  tried  were  live,  viz  : 

1.  "  Conspiracy    against    the    Government    of    the 
United  States  ;" 

2.  "Affording  aid  and  comfort  to  rebels  against  the 
authority  of  the  United  States  ;" 

3.  "  Inciting  Insurrection  ;" 

4.  "  Disloyal  practices  ;"  and 

5.  "  Violation  of  the  laws  of  war." 

Under  the  first  charge  there  were  four  specifications  ; 
under  the  second,  three ;  under  the  third,  two  ;  under 
the  fourth,  five ;  and  under  the  fifth,  two.  The  sub- 
stance of  these  various  specifications,  was  joining  and 
aiding  at  different  times  between  October,  1863,  and 
August,  1864,  a  secret  society  known  as  the  order  of 
American  Knights  or  Sons  of  Liberty,  "  for  the  purpose 
of  overthrowing  the  government  and  duly  constituted 
authorities  of  the  United  States,"  *  *  "  *  "  at  a 
period  of  war  and  armed  rebellion  against  the  authority 
of  the  United  States,  at  or  near  Indianapolis,  Indiana," 
[or  "  at  or  near  Shoals'  Station,  Martin  County,  In- 
diana," or  "  at  or  near  Green  York  Township,  Randolph 
County,  Indiana,"  or  "at  or  near  Salem,  Washington 
County,  Indiana,"]  a  State  wdthin  the  military  lines  of  the 
army  of  the  United  States,  and  the  theatre  of  military 
operations  and  which  had  been  and  was  constantly 
threatened  to  be  invaded  by  the  enemy,"  or  "  at  or  near 
the  City  of  Chicago,  Illinois,  a  State  within  the  lines  of 
the  army  of  the  United  States,  and  the  theatre  of  military 
operations,  and  threatened  by  invasion  of  the  enemy." 
These  were  amplified  and  stated  with  various  circum- 
stances, thus  : 

In  the  First  Specification  of   the  Fiest  Chabge  : 


21 


Conspiring  against  the  duly  constituted  authorities  of  the 
United  States." 

Second  Specification  of  the  First  Charge  :  Com- 
bination with  certain  persons  to  "  adopt  and  impart  to 
others  the  ritual  of  the  society  ;"  "  denying  the  au- 
thority of  the  United  States  to  coerce  to  submission 
certain  rebellious  citizens  of  the  United  States." 

Third  Specification  of  the  First  Charge  :  The  soci- 
ety's intent  and  purpose  "to  cripple  and  render  power- 
less the  efforts  of  the  Government  of  the  United  States  in 
suppressing  a  then  existing  formidable  rebellion  against 
the  said  government ;"  and  in  the 

Fourth  Specification  of  the  First  Charge  :  Con- 
spiracy "  to  seize  by  force  the  United  States  and  State 
Arsenals  at  Indianapolis,  Indiana  ;  Columbus,  Ohio ;  and 
Springfield  Illinois  ;  to  release  by  force  the  rebel  prison- 
ers held  by  authority  of  the  United  States,"  ^  ^  *  * 
"  arm  those  prisoners  with  the  arms  thus  seized,  and  that 
these  said  conspirators  with  all  the  forces  they  were 
able  to  raise  in  the  secret  order  above  named,  and  were 
in  conjunction  with  the  rebel  prisoners  thus  released  and 
armed  to  march  into  Kentucky  and  Missouri,  and  co- 
operate with  the  rebel  forces  to  be  sent  to  those  States 
by  the  rebel  authorities,  against  the  government  and  au- 
thorities of  the  United  States." 

In  the  First  Specification  of  the  Second  Charge  : 
"  Communicating  with  the  enemies  of  the  United  States, 
with  intent  that  they  should  *  *  invade  the  States 
of  Kentucky,  Indiana  and  Illinois,  with  the  further  intent, 
that  the  order  aforesaid  should  *  ^  co-operate  with 
the  said  armed  forces  of  the  rebellion  *  *  and 
communicating"  to  them  that  intent. 

Second  Specification  of  the  Second  Charge  :  Send- 
ing a  member  of  the  said  order  "  with  instructions  for 
*         *         *     other   members     *         ^'     to    select  good 


22 


couriers  or  runners  ^  ^  «  for  the  purpose  of 
assisting  those  in  rebellion  against  the  United  States,  to 
call  to  arms  the  members  of  the  order  and  other  sympa- 
thizers with  the  existing  rebellion,  whenever  a  signal 
should  be  given  by  the  order." 


Third  Specification  of  the  Second  Charge  :  "  Joining 
-themselves  in  an  unlawful  secret  society,  *  -^  •» 
designed  for  the  overthrow  of  the  Government  of  the 
United  States,  and  to  compel  terms  with  the  *  -^  •2<- 
Confederate  States  ^  ^  ^  and  communicating 
the  designs  of  that  society  to  those  in  rebellion." 

In  the  First  Specification  of  the  Third  Charge  :  "Or- 
ganizing, and  attempting  to  arm,  and  arming  a  portion 
of  the  citizens  of  the  United  States,  through  an  unlawful 
secret  society,  known  as  the  Order  of  American  Knights 
*  ^  with  intent  to  induce  them,  with  themselves,  to 
throw  off  the  authority  of  the  United  States,  and  to  co- 
operate with  their  armed  enemies." 

In  the  Second  Specification  op  the  Third  Charge  : 
*'By  public  addresses,  <fcc.,  arousing  sentiments  of  hos- 
tility to  the  Government  of  the  United  States,  and  at- 
tempting to  induce  the  people  to  revolt  ^  *  and 
secretly  arm  and  organize  themselves  to  resist  the  laws 
of  the  United  States," 

In  the  First,  Second,  Third  and  Fourth  Specifications 
OF  the  Fourth  Charge:  Advising  citizens  to  resist  a 
draft  *  ^  and  arming  citizens  of  the  United  States? 
belonging  to  the  Order  of  American  Knights  for  the  pur- 
pose of  resisting  the  draft"  *  *  *  -5^  (JqI^ 
25,)  at  four  different  places  named. 

In  the  Fifth  Specification  of  the  Fourth  Charge  : 
*'  Accepting  and  holding  offices  in  the  military  forces  for 
the  State  of  Indiana,  in  an  unlawful  society,  known  as 
the  Order  of  American  Knights,  ^  *  being  offices 
and  forces  unknown  to  the  Constitution  and  laws  of  the 


23 


United  States,  and  of  Indiana     ^         ^     and  in  opposi- 
tion to  the  legally  constituted  authorities  thereof." 

In  the  First  Specification  of  the  Fifth  Charge  : 
"  Violating  their  allegiance  ^'  and  attempting  to  intro- 
duce enemies  of  the  United  States  into  the  loyal  States, 
thereby  to  overthrow  and  destroy  the  authority  of  the 
United  States." 

Second  Specification  of  the  Fifth  Charge  :  "Organ- 
izing and  extending  an  unlawful  secret  society  ^  * 
having  for  its  purpose  the  same  general  object  and  de- 
sign as  the  enemies  of  the  United  States,  and  with  the 
intent  to  aid  and  insure  the  success  of  said  enemies,  in 
their  resistance  to  the  authorities  of  the  United  States." 

I  will  not  here  stop  to  call  attention  to  the  great  mis- 
application of  language  in  connecting  the  last  charge 
with  the  two  specifications  under  it.  It  is  called  a  "  vio- 
lation of  the  laws  of  war,"  for  a  citizen  to  violate  his  al- 
legiance, and  to  attempt  the  introduction  into  the  country 
of  its  enemies.  It  is  also  called  a  "  violation  of  the  laws  of 
war,"  for  a  citizen  to  organize  a  secret  society,  "  having 
for  its  purpose  the  same  general  object  and  design  as  the 
said  enemies  of  the  United  States,  and  with  the  intent  to 
aid  and  insure  the  success  of  the  said  enemies  in  their 
resistance."  Nor  will  I  stop  to  remark  upon  the  strange 
medley  of  acts  and  opinions  contained  in  the  other 
specifications.  Thus,  for  example,  the  second  specifi- 
cation of  the  first  charge  accuses  the  petitioners  of  a 
combination  to  adopt  and  impart  the  creed  of  a  secret 
society,  "  denying  the  authority  of  the  United  States  to 
coerce  to  submission  certain  rebellious  citizens  of  the 
said  United  States  ; "  and  the  first  four  specifications  of 
the  fourth  charge  accuse  them  of  advising  citizens  to 
resist  the  draft,  and  of  attempting  to  arm,  and  arming 
certain  citizens,  "  for  the  purpose  and  with  the  intent  of 
resisting  said  call  or  draft;"  and  the  fifth  specification 
of  the  same  charge  accuses  them  of  holding  offices  of  the 
mihtary  forces  of  this  secret  society,  which  "are  unknown 
to  the  constitution  and  laws  of  the  United  States,  or  of 


24 


the  State  of  Indiana,  and  are  not  in  aid  of,  but  opposed 
to  the  legally  constituted  authorities  thereof."  These 
are  but  specimens  of  what  we  may  expect  from  tlie  pre- 
valence of  military  commissions. 

While  the  petitioners  were  in  prison,  and  nine  days 
before  the  time  appointed  for  their  execution,  each  of 
them  presented  a  petition  to  the  Circuit  Court  of  the 
United  States  for  the  District  of  Indiana,  setting  forth 
the  foregoing  facts,  with  a  copy  of  the  charges,  specifi- 
cations, finding  and  sentence,  and  praying,  that  under  the 
*'Act  of  Congress,  approved  March  3d,  1863,"  entitled 
"An  Act  relating  to  Habeas  Corpus,  and  regulating 
judicial  proceedings  in  certain  cases,"  he  may  [might]  be 
brought  before  this  Court,  by  writ  cf  Habeas  Corpus,  or 
such  other  writ  or  order  as  the  Court  [might]  award  for 
that  purpose,  together  with  the  cause  of  his  caption  and 
detention,  to  do  and  receive  whatever  the  Court  [might] 
upon  full  and  final  hearing,  order  and  adjudge  in  relation 
thereto,  in  pursuance  of  the  Act  of  Congress  aforesaid, 
and  that  at  all  events  he  [might]  be  delivered  from  said 
military  custody  and  imprisonment,  and  if  found  probably 
guilty  of  any  improper  conduct  or  offence  against  the 
United  States  of  America,  turned  over  to  the  proper  civil 
tribunals  for  inquiry  and  punishment  according  to  law, 
or  for  discharge  from  custody  altogether." 

Upon  this  application  the  Judges  were  divided  in 
opinion,  and  they  sent  to  this  Court  a  certificate  of  their 
division,  upon  the  following  three  questions  : 

1.  "  On  the  facts  stated  in  said  petition  and  exhibits, 
ought  a  writ  of  Habeas  Corpus  to  be  issued,  ac- 
cording to  the  prayer  of  said  petition  ? ' ' 

2.  "  On  the  facts  stated  in  said  petition  and  exhibits, 
ought  the  said  [Lambkin  P.  Milligan]  to  be  dis- 
charged from  custody,  as  in  said  petition  prayed  ?" 

3.  "Whether,  upon  the  facts  stated  in  said  petitioi 
and  exhibits,  the  military  commission  mentionec 
therein,  had  jurisdiction  to  try  and  sentence  sai( 
[Milligan,]  in  manner  and  form  as  in  said  petitioi 
and  exhibits  is  stated  ?" 


25 


The  argument  upon  these  questions  naturally  divides 
itself  into  two  parts  : 

First. — Was  the  military  commission  a  competent 
tribunal  for  the  trial  of  the  petitioners  upon  the  charges 
upon  which  they  were  convicted  and  sentenced  ? 

Second. — If  it  was  not  a  competent  tribunal,  could  the 
petitioners  be  released  by  the  Circuit  Court  of  the  United 
States  for  the  District  of  Indiana,  upon  writs  of  Habeas 
Corpus  or  otherwise  ? 

The  discussion  of  the  competency  of  the  Military 
Commission,  is  first  in  order,  because,  if  the  petitioners 
were  lawfully  tried  and  convicted,  it  is  useless  to  inquire 
how  they  could  be  released  from  an  unlawful  imprison- 
ment. 

If,  on  the  other  hand,  the  tribunal  was  incompetent, 
and  the  conviction  and  sentence  nullities,  then  the  means 
of  relief  become  subjects  of  inquiry,  and  involve  the 
following  considerations  : 

[1.]  Does  the  power  of  suspending  the  privilege  of 
the  writ  of  Habeas  Corpus  appertain  to  all  the 
great  departments  of  government  concurrently,  or 
to  some  only,  and  which  of  them  ? 

[2.]  If  the  power  is  concurrent,  can  its  exercise  by 
the  executive  or  judicial  department  be  restrained 
or  regulated  by  Act  of  Congress  ? 

[3.]  If  the  power  appertains  to  Congress  alone,  or 
if  Congress  may  control  its  exercise  by  the  other 
departments,  has  that  body  so  exercised  its  func- 
tions, as  to  leave  to  the  petitioners  the  privilege  of 
the  writ,  or  to  entitle  them  to  their  discharge  ? 

In  considering  the  first  question,  that  of  the  compe- 
tency of  the  military  tribunal  for  the  trial  of  the  peti- 
tioners, upon  those  charges. 

Let  me  first  call  attention  to  the  dates  of  the  transac- 
tions. The  commission  was  created  by  general  order, 
4 


26 


dated  the  17tli  of  September,  1864,  directing  a  military 
commission  to  convene  at  Indianapolis,  for  the  trial  of 
Harrison  H.  Dodd,  and  such  other  persons  as  might  be 
brought  before  it.  The  arrest  of  Bowles  was  made  on 
the  18th  of  September ;  of  Milligan,  on  the  5th  of  Octo- 
ber; and  of  Horsey,  on  the  14th  of  October.  The  peti- 
tioners were  brought  before  the  commission  on  the  21st 
of  October ;,  the  trial  lasted  to  January  1,  1865.  On  the 
first  Tuesday  of  November,  1864,  the  Circuit  Court  of  the 
United  States  convened  at  Indianapolis  ;  it  continued  by 
adjournment  to  the  2d  of  January,  1865,  remained  in  ses- 
sion till  the  27th  of  January,  and  then  adjourned  for  the 
term.  The  Circuit  Court  for  the  Southern  District  of 
Illinois  sat  at  Springfield  in  June,  1864,  and  January, 
1865,  and  for  the  Northern  District,  at  Chicago,  on  the 
first  Monday  of  July  and  the  third  Monday  of  December, 
1864.  The  record  of  this  military  trial  slept  in  the  War 
Department  from  January  to  the  2d  day  of  May,  1865,  on 
which  day  it  for  the  first  time  appeared,  as  an  authentic 
document,  containing  an  approval  of  the  finding  and  sen- 
tence, and  an  order  for  the  execution.  On  the  10th  of 
the  mouth  the  petitioners  made  their  application  to  the 
Circuit  Court. 

Bearing  in  mind,  that  the  promulgation  of  the  proceed- 
ings by  the  War  Department  was  on  the  2d  May,  1865  ; 
let  me  refer  to  certain  facts  of  public  notoriety,  of  which 
the  Court  will  take  judicial  notice.  13  Peters,  590.  Bk. 
of  Augusta  V.  Earle,  2  Kob.  Lou,  468 ;  3  Mart.  Lou,  546 ; 
1  Greenl.  Ev.,  4,  5,  6,  On  the  3d  of  April,  1865,  the  power 
of  the  Confederacy  was  crushed  to  atoms  ;  when  the  rebels 
fled  from  Kichmond.  On  the  9th  of  April,  Lee  surren- 
dered. The  chief  of  the  rebel  government  was  a  fugitive, 
closely  pursued  by  horsemen,  till  he  was  finally  captured 
on  the  11th  of  May.  Mobile  was  taken  on  the  13th  of 
April ;  Johnston  surrendered  on  the  25th  of  April ;  and 
Taylor  gave  up  the  last  rebel  force  east  of  the  Mississippi 
on  the  4th  of  May. 

On  the  morning  of  the  day,  when  these  men  were  to 
have  been  hanged  at  Indianapolis,  upon  the  plea  of 
miHtary  necessity,  there  was  not  an  arm  raised  against 


27 


tlie  Government  between  the  Atlantic  and  the  Father  of 
Bivers  :  all  was  submission,  from  the  Bio  Grande  to 
Katahdin.  Three  days  later — that  is,  on  the  22d  of  May 
— the  victorious  armies,  returning  from  their  fields  of 
glory,  passed,  for  the  last  time,  in  review  before  the 
President,  when  you  saw  nearly  two  hundred  thousand 
veterans  defiling  through  the  avenues  of  the  capital,  with 
triumphant  music  and  banners,  and,  to  repeat  the  descrip- 
tion of  an  eminent  statesman  of  Ohio,  now  deceased, 
sweeping  along,  as  if  they  were  lords  of  the  world. 

There  had  not  been  a  hostile  foot  in  the  State  of 
Illinois,  from  the  beginning  of  the  war,  if  I  am  correctly 
informed,  and  in  Indiana  never  but  once,  if  we  except 
guerrillas  crossing  the  Ohio  and  returning  within  a  few 
hours,  and  that  once  was  on  the  occasion  of  Mtu^gan's 
raid  in  Jul}',  1863.  This  raid  was  n  total  faikire ;  its 
leader  was  captured,  his  band  dispersed,  and  he,  Limself, 
sent  to  the  penitentiary.  Managing  to  escape,  he  at- 
tempted again  to  get  up  a  raid  into  Kentucky,  but  was 
defeated  and  killed  on  the  12th  of  April,  1864. 

On  the  21st  of  October,  1864,  when  this  military  trial 
began,  there  was  not  only  no  enemy  in  arms  within  the 
States  of  Indiana  and  lUinois,  but  none  within  hundreds 
of  miles.  Price  was  retreating  from  Missouri,  and  was 
overtaken  and  utterly  routed  on  the  22d  of  October.  The 
valley  of  the  Shenandoah  was  finally  cleared  of  the  rebels 
by  the  decisive  victory  of  Sheridan  on  the  19th  of  Octo- 
ber. Sherman  had  been  seven  weeks  at  Atlanta  pre- 
paring for  his  grand  march  to  the  sea.  Grant  had  pinned 
Lee's  army  to  Eichmond,  where  he  finally  ground  it  to 
powder. 

Let  it  be  observed  next,  that  for  the  same  offenses  as 
those  set  forth  in  these  charges  and  specifications,  the 
petitioners  could  have  been  tried  and  punished  by  the 
ordinary  civil  tribunals.  For  "  conspiring  against  the 
government  of  the  United  States ;"  for  "  affording  aid 
and  comfort  to  rebels  against  the  authority  of  the 
United  States ;"  for  "  inciting  insurrection ;"  for  the 
"disloyal  practices"  set  forth  in  the  five  specifications 
under  that  charge^  and  for  the  "  violation  of  the  laws  of 


28 


war,"  set  forth  in  the  two  specifications  under  the  fifth 
charge,  penalties  considered  sufficient  b}^  the  law-making 
power  had  been  already  declared,  and  ample  provision 
had  been  made  for  indictment  and  trial  in  the  or- 
dinary courts. 

Treason,  as  everybody  knows,  is  defined  by  the  Consti- 
tution, and  its  punishment  is  prescribed  by  Act  of  Con- 
gress. "  Treason  against  the  United  States  shall  consist 
only  in  levying  war  against  them,  or  in  adhearing  to  their 
enemies,  giving  them  aid  and  comfort."  "  The  Congress 
shall  have  power  to  declare  the  punishment  of  treason." 
By  the  Act  of  April  30,  1790,  Congress  declared  the  pun- 
ishment of  treason  to  be  death. 

By  the  act  of  July  31,  1861  (12  U.  S.  Sfat,  284),  it  is 
declared,  that — 

§  1  :  "If  two  or  more  persons  within  any  State  or  Ter- 
ritory of  the  United  States  shall  conspire  together,  to 
overthrow  or  to  put  down,  or  to  destroy  by  force,  the 
Government  of  the  United  States  ;  or  to  levy  war  against 
the  United  States ;  or  to  oppose  by  force  the  authority 
of  the  Government  of  the  United  States  ;  or  by  force  to 
prevent,  hinder  or  delay  the  execution  of  any  law  of  the 
United  States  ;  or  by  force,  to  seize,  take  or  possess  any 
property  of  the  United  States,  against  the  will,  or  con- 
trary to  the  authority  of  the  United  States  ;  or  by  force, 
intimidation,  or  threat,  to  prevent  any  person  from  hold- 
ing any  office,  or  trust,  or  place  of  confidence  under  the 
United  States  ;  each,  and  every  person  so  offending,  shall 
be  guilty  of  a  high  crime,  and  upon  conviction  thereof, 
in  any  district  or  circuit  court  of  the  United  States, 
having  jurisdiction  thereof,  or  district  or  supreme  court 
of  any  Territory  of  the  United  States,  having  jurisdiction 
thereof,  shall  be  punished  by  a  fine  not  less  than  five 
hundred  dollars,  and  not  more  than  five  thousand  dol- 
lars ;  or  by  imprisonment,  with  or  without  hard  labor,  as 
the  court  shall  determine,  for  a  period  not  less  than  six 
months,  nor  greater  than  six  years,  or  by  both  such  fine 
and  imprisonment." 

By  the  Act  of  August  6,  1861  (12  U.  S.  Stat.,  317), 
§  1  :  "If  any  person  shall  be  guilty  of  the  act  of  re- 
cruiting soldiers  or  sailors  in  any  State  or  Territory  of 
the  United  States  to  engage  in  armed  hostility  against 
the  United  States,  or  who  shall  open  a  recruiting  station 
for  the  enlistment  of  such  persons,  either  as  regulars  or 


29 


volunteers,  to  serve  as  aforesaid,  sliall  be  guilty  of  a  high 
niisdenieanor,  and  upon  conviction  in  any  court  of  record 
liavino-  jurisdiction  of  the  offence,  shall  be  fined  a  sum 
not  less  than  two  hundred  dollars  nor  more  than  one 
thousand  dollars,  and  confined  and  imprisoned  for  a 
period  not  less  than  one  year,  nor  more  than  five  years. 

§  '2>.  "  The  person  so  enlisted,  orj|engaged  as  a^regular 
or  volunteer,  shall  be  fined  in  a  like  manner  a  sum  of  one 
hundred  dollars,  and  imprisoned  not  less  than  one  nor 
more  than  three  years." 

By  the  Act  of  July  19,  1862  (12  U.  S.  Stat.,  590), 
§  2  :  "  If  any  person  shall  incite  or  set  on  foot,  assist 
or  engage  in  any  rel)ellion  or  insurrection  against  the 
authority  of  the  United  States  or  the  lavi^s  thereof,  or 
shall  give  aid  or  comfort  thereto,  or  shall  engage  in  or 
give  aid  a'ld  co  nfort  to  any  such  existing  rebellion  or 
insurrection,  and  be  convicted  thereof,  such  person  shall 
be  punished  by  iuiprisonment  for  a  period  not  exceeding 
ten  years,  or  by  a  tine  not  exceeding  $10,000,  and  by  the 
liberation  of  all  his  slaves,  if  any  he  have  ;  or  by  both  of 
said  punishments,  at  the  discretion  of  the  Court." 

By  the  Act  of  Feb.  25,  1863  (12  U.  S.  Stat.,  696), 
§  1  :  "If  any  person,  being  a  resident  of  the  United 
States,  or  being  a  citizen  thereof,  and  residing  in  any 
foreign  country,  shall,  without  the  permission  or  authority 
of  the  Government  of  the  United  States,  and  with  the 
intent  to  defeat  the  measures  of  the  said  government,  or 
to  weaken  in  any  way  their  efficacy,  hold  or  commence, 
directly  or  indirectly,  any  correspondence  or  intercourse, 
written  or  verbal,  with  the  present  pretended  rebel  gov- 
ernment, or  with  any  officer  or  agent  thereof,  or  with  any 
other  individual  acting  or  sympathizing  therewith  ;  or  if 
any  such  person  above  mentioned,  not  duly  authorized, 
shall  counsel  or  assist  in  any  such  correspondence  or 
intercourse,  with  intent  as  aforesaid,  he  shall  be  deemed 
guilty  of  a  liigh  misdemeanor,  and,  on  conviction  before 
any  Court  of  the  United  States  having  jurisdiction  there- 
of, shall  be  punished  by  a  tine  not  exceeding  ten  thousand 
dollars,  and  by  imprisonment  not  less  than  six  months, 
nor  exceeding  five  years." 

And  by  the  Act  of  March  3,  1863  (12  U.  S.  Stat.,  731), 
§  25  :  "  That  if  any  person  shall  resist  any  draft,  of 
men  enrolled  under  this  act,  into  the  service  of  the 
United  States,  or  shall  counsel  or  aid  any  person  to 
resist  any  such  draft ;  or  shall  assault  or  obstruct  any 
officer  in  making  such   draft,  or  in  the  performance   of 


30 


any  service  relating  thereto ;  or  shall  counsel  any  person 
to  assault  or  obstruct  any  such  officer,  or  shall  counsel 
any  drafted  men  not  to  appear  at  the  place  of  rendezvous, 
or  wilfully  dissuade  them  from  the  performance  of  mili- 
tary duty  as  required  by  law,  such  person  shall  be  sub- 
ject to  summary  an^est  by  the  Provost  Marshal,  and 
shall  be  forthwith  delivered  to  the  civil  authorities,  and, 
upon  conviction  thereof,  be  punished  by  a  fine  not  ex- 
ceedinf]^  five  hundred  dollars,  or  by  imprisonment  not 
exceeding  two  years,  or  by  both  of  said  punishments." 

There  has,  indeed,  been  no  lack  of  legislation  in 
respect  to  any  matter  connected  with  the  rebellion.  The 
title  on  "  Insurrection,"  in  Brightly's  Supplementtuy 
Digest,  fills  a  dozen  closely  printed  pages. 

Let  it  also  be  remembered,  that  Indiana,  at  the  time 
of  this  trial,  was  a  peaceful  State ;  the  Courts  were  all 
open  ;  their  processes  had  not  been  interrupted  ;  the 
laws  had  their  full  sway.  How  do  we  know  that  ?  We 
know  it,  first,  from  the  most  authentic  acts  of  the 
government,  Indiana  participated  in  the  presidential 
election  of  1864,  and  gave  her  full  vote.  She  has  been 
all  the  time  fully  represented  in  both  houses  of  Congress. 
That  body,  in  1862,  passed  an  act  declaring,  that  when, 
in  any  State  or  Territory-,  or  in  any  portion  thereof,  by 
reason  of  insurrection  or  rebellioia^  the  civil  authority  of 
the  Government  of  the  United  States  was  obstructed,  so 
that  the  provisions  of  the  act  to  provide  increased  reve- 
nue could  not  be  peaceably  executed,  the  taxes  should  be 
charged  upon  the  real  estate  therein,  and  providing  by 
the  Second  Section  of  the  Act  (12  U.  S.  Stat.,  422), 

"  That  before  the  first  day  of  July  next  the  President, 
by  his  proclamation,  [should]  declare  in  what  States  and 
parts  of  States  said  insurrection"  existed. 

The  President,  in  pursuance  of  this  Act  of  Congress, 
issued  a  proclamation,  dated  July  1,  1862,  reciting  that, 
by  the  act  which  I  have  just  quoted,  it  was  made  his 
duty  to  declare,  on  or  before  the  first  day  of  July,  by  his 
proclamation,  in  what  State  or  parts  of  States  insurrec- 
tion existed,  and  proceeding  to  declare  : 

"I,  Abraham  Lincoln,"  ->^  ^  ^  ^  ''hereby 
declare  and  proclaim  that  the  States  of  South  Carolina^ 


31 


Florida,  Georgia,  Alabama,  Louisiana,  Texas,  Missis- 
sippi, Arkansas,  Tennessee,  North  Carolina,  and  the 
State  of  Virginia,  except  the  following  Counties,"  ^ 
"  v:-  "aj.g  iiow  in  insurrection  and  rebellion,  and  by 
reason  thereof  the  civil  authority  of  the  United  States  is 
obstructed,"  &c. 

Indiana  and  Illinois  were  therefore  not  considered  by 
the  President  to  be  in  a  state  of  insurrection.  The  execu- 
tive department  of  the  Government  declared  in  effect,  that 
in  every  part  of  those  States  the  taxes  could  be  peaceably 
collected. 

But  we  know  from  other  sources  that  Indiana  and  Illi- 
nois were  at  peace.  Appeals  have  been  regularly  brought 
hither  from  the  Courts  of  those  States.  You,  Mr.  Justice 
Davis,  and  your  associates  in  those  districts,  know,  from 
the  records  of  3^our  own  Courts,  whether  or  not  cases 
have  been  regularly , tried,  and  the  laws  have  had  their 
course  in  Indiana  and  Illinois ;  and  of  that  you  are,  for 
good  reasons,  the  best  judges.  Long  ago,  the  law  pro- 
vided for  the  solution  of  just  such  a  question.  In  the 
third  book  of  his  Institutes,  section  412,  in  the  chapter 
on  descents.  Coke  states  it  thus  :  -- 

"First,  it  is  necessarie  to  be  known,  what  shall  be 
said  time  of  peace,  tempus  pads  ;  and  what  shall  be  said, 
iempus  belli  sive  guerrce,  time  of  war.  Tempiis  pads  est 
quando  cancellaria,  et  alice  cur  ice  regis  sunt  apertce,  quihus 
lex  fiehat  cuicunque  pr out  fieri  consuevit.  And  so  it  was 
adjudged  in  the  case  of  Boger  Mortimer,  and  Thomas 
Earle  of  Lancaster.  Utritni  terra  sit  guerrina  necne,  natu- 
raliter  delet  Judicari  per  recorda  regis,  et  eorum,  qui  curias 
regis  per  legem  terra?  costodiunt,  et  guhernant,  sed  non  alio 
indilo.'' 

By  the  records  of  the  Courts,  and  in  no  other  manner ! 

Those  records  are  the  evidence  whether  your  Courts 
vrcro  open. 

The  charges  and  specifications  do  not  even  suggest 
that  the  regular  course  of  justice  had  been  once  im- 
peded. All  that  they  pretend  is,  that  the  acts  were 
done  "  at  a  period  of  war  and  armed  rebellion  against  the 
authority  of  the  United  States,  at  or  near  Indianapolis, 


\\9. 


Indiana,  [or  Chicago,  Illinois,]  a  State  loithui  the  mili- 
tary lines  of  the  army  of  the  United  States,  and  the  theatre 
of  military  operations,  and  luhich  had  been  and  luas  con- 
stantly  threatened  to  he  invaded  by  the  enemy."  This 
allegation  is  a  gross  perversion  of  the  facts.  To  be 
within  military  lines  is  to  be  within  the  lines  of  sentinels 
which  mark  the  boundary  of  military  occupation,  and 
within  which  the  discipline  of  the  camp,  under  the  con- 
trol of  the  Provost  Marshal,  alone  prevails.  The  judges 
to  whom  this  petition  was  addressed  know,  that  this  was 
not  true  then,  and  had  never  been  true  of  the  State  of 
Indiana,  or  of  the  State  of  Illinois. 

How  is  it  that  an  officer  of  the  Government,  one  who, 
presumably  at  least,  can  have  no  interest  to  oppress  the 
citizen,  should  dare  to  put  upon  a  public  record,  for  the 
purpose  of  bringing  men  to  death,  an  allegation  like  that ! 
You  know,  we  all  know,  because  you  know  and  we  know 
the  public  history  of  the  country,  that  during  all  this 
war  the  civil  governments  of  Indiana  and  Illinois  have 
been  uninterrupted.  Industry  has  followed  its  accustomed 
channels ;  the  fields  have  been  plouglied  ;  the  harvests 
have  been  gathered,  the  people  have  been  prosperous, 
throughout  these  two  vigorous  States  of  the  West,  which 
repose  in  conscious  greatness  between  the  great  rivers 
and  the  lakes. 

Chicago,  a  place  within  the  military  lines  !  That  city, 
the  queen  city  of  the  North,  looking  like  another  Venice 
upon  the  waters  of  the  Michigan,  with  her  harbor  crowded 
with  ships,  and  the  lake  before  her  white  with  sails  ;  that 
city,  to  which  long  lines  of  heavily  laden  cars  were  daily 
and  hourly  bringing  the  products  of  all  the  West,  whose 
granaries  were  the  storehouses  for  the  world  ;  that  city 
had  never  known  w^ar  ! 

Then  let  it  be  remembered,  that  the  petitioners  were 
simple  citizens  not  belonging  to  the  army  or  navy  ;  not 
in  any  official  position  ;  not  connected  in  any  manner 
with  the  public  service.  They  were  in  the  condition  of 
any  other  citizen  who  might  fall  under  suspicion  ;  any 
judge,  lawyer,  physician,  or  clergyman  of  the  State  of 
Indiana.     The  assumption  of  the  right  to  try  them  upon 


33 

these  charges,  was  the  assumption  of  the  right  to  try  other 
citizens  of  Indiana,  whoever  they  might  be,  upon  the 
same  charges.  The  evidence  against  the  petitioners  is 
not  to  be  found  in  this  record,  and  it  is  immaterial. 
Their  guilt  or  their  innocence  does  not  affect  the  question 
of  the  competency  of  the  tribunal,  by  w^hich  they  were 
judged.  What  they  dispute,  and  what  I  dispute,  is  the 
jurisdiction  of  the  militarj^  commission  to  decide  the 
issue  of  gailt  or  innocence.  They  may,  for  aught  I  know, 
have  been  as  guilty  as  fiends  or  as  pure  as  angels.  If 
they  were  in  heart  disloyal  to  their  country,  I  abhor  and 
despise  them  ;  if  they  have  been  guilty  of  any  act  of 
treason,  let  them  be  tried  for  it  before  the  judges  of  the 
land  ;  if  they  have  conspired  against  the  safety  or  the 
honor  of  the  nation,  there  is  the  Act  of  Congress  for  their 
punishment ;  and  if  by  reason  of  any  defect  in  the  law 
of  evidence,  or  of  juries,  they  are  likely  to  escape  convic- 
tion before  the  civil  tribunals,  h(fre  are  the  two  Houses  of 
Congress  sitting  in  the  wings  of  this  Capitol,  who  can 
amend  the  laws.  I  am  not  seeking  to  screen  the  guilty, 
but  I  contend  for  the  right  of  every  man  to  be  judged 
according  to  the  laws,  for  thereby  only  can  it  be  certainly 
known  who  is  guilty  or  who  is  innocent.  I  am  struggling, 
not  for  the  escape  of  guilt,  but  for  the  safeguard  of  inno- 
cence. 

Bearing  in  mind,  therefore,  the  nature  of  the  charges, 
and  the  time  of  the  trial  and  sentence  ;  bearing  in  mind 
also  the  presence  and  undisputed  authority  of  the  civil 
tribunals  and  the  civil  condition  of  the  petitioners,  I  ask 
by  what  authority  they  were  withdrawn  from  their  natu- 
ral judges,  by  what  authority  another  kind  of  tribunal  was 
constituted.  By  what  authority  does  it  purport,  on  the 
face  of  the  proceedings,  to  have  been  constituted  ?  It 
was  established  by  special  order  of  General  Hovey,  of 
the  United  States  Volunteers,  who  was  at  that  time  in 
command  of  the  military  district  of  Indiana  ;  which  order 
named  one  brigadier  general  and  six  colonels  to  hold  a 
military  commission  at  Indianapolis.  The  commission 
was  subsequently  enlarged  by  the  addition  of  four  colonels 
and  one  lieutenant  colonel.  What  was  the  general  juris- 
5 


34 


diction  of  this  commission  ?  Whom  it  was  to  try,  and 
for  what  offences,  does  not  appear  further  than  that  it 
was  to  try  "  Harrison  H.  Dodd,  and  such  other  prisoners 
as  might  be  brought  before  it."  The  only  special  direc- 
tion was  this — ^"  the  commission  will  sit  without  regard 
to  hours." 

It  was  called  a  military  commission.  What  is  a  mili- 
tary commission?  Is  it  a  body  known  to  the  laws?  Is 
it  a  court  martial  under  another  name,  or  what  is  the 
difference  between  them  ?  Originally,  a  military  commis- 
sion appears  to  have  been  nothing  more  than  an  advisory 
board  of  officers,  convened  for  the  purpose  of  informing 
the  conscience  of  the  commanding  officer,  in  cases  where 
he  might  act  for  himself  if  he  chose.  Its  constitution  and 
functions  were  not  defined  by  law,  because  strictly  it  had 
no  legal  existence,  any  more  than  a  council  of  war.  Gen- 
eral Scott  resorted  to  it  in  Mexico  for  his  assistance  in 
governing  conquered  places.  The  first  mention  of  it  in 
an  Act  of  Congress  appears  to  have  been  in  the  Act  of 
July  22,  1861,  where  the  general  commanding  a  sepa- 
rate department,  or  a  detached  army,  was  authorized 
to  appoint  a  military  board,  or  commission,  of  not  less 
than  three,  or  more  than  five  officers,  to  examine  the 
qualifications  and  conduct  of  commissioned  officers  of 
volunteers. 

Subsequently,  military  commissions  are  mentioned  in 
four  acts  of  Congress,  but  in  none  of  them  is  any  pro- 
vision made  for  their  organization,  regulation,  or  juris- 
diction, farther  than  that  it  is  declared  that  in  time  of 
war  or  rebellion,  spies  may  be  tried  by  a  general  court 
martial  or  military  commission  ;  and  that  "  persons  who 
are  in  the  military  service  of  the  United  States,  and  sub- 
ject to  the  articles  of  war,"  may  also  be  tried  by  the  same, 
for  murder  and  certain  other  infamous  crimes. 

These  acts  do  not  confer  upon  military  commissions 
jurisdiction  over  any  persons  other  than  those  in  the 
military  service  and  spies.  Is  there  any  other  act  of 
Congress  which  confers  it  ?  None  is  pretended,  unless 
it  is  inferred  from  the  Act  of  March  3d,  1863.  This  act, 
it   has   been    sometimes    said,   though   not    now   much 


35 


insisted  on,  gives  the  sanction  of  Congress  to  the 
President's  Proclamation  of  September  24th,  1862.  That 
proclamation  ordered,  that  "  during  the  existing  insur- 
rection, and  as  a  necessary  means  for  suppressing  the 
same,  all  rebels  and  insurgents,  their  aiders  and  abettors, 
within  the  United  States,  and  all  persons  discouraging 
volunteer  enlistments^  resisting  militia  drafts^  or  guilty  of 
any  disloyal  practice^  affording  aid  and  comfort  to  rebels, 
against  the  authority  of  the  United  States,  shall  be 
subject  to  martial  law,  and  liable  to  trial  and  punish- 
ment by  courts  martial,  or  military  commission."  The 
4th  Section  of  the  Act  of  Congress  declared,  "that  any 
order  of  the  President,  or  under  his  authority,  made  at 
any  time  during  the  existence  of  the  present  rebellion, 
shall  be  a  defence,  in  all  Courts,  to  any  action  or  prose- 
cution, civil  or  criminal,  pending  or  to  be  x3ommenced, 
for  any  search,  seizure,  arrest  or  imprisonment,  made, 
done  or  committed,  or  acts  omitted  to  be  dune,  under 
and  by  virtue  of  such  order,  or  under  color  of  any  law  of 
Congress,  and  such  defence  may  be  made  by  special  plea, 
or  under  the  general  issue." 

Assuming  this  section  to  be  constitutional,  though  I 
suppose  it  is  clearly  unconstitutional,  it  goes  only  to  the 
length  of  making  the  President's  order  a  defence  to  an 
action  or  prosecution,  civil  or  criminal,  for  a  search, 
seizure,  arrest  or  imprisonment.  It  gives  no  other  validity 
or  vitality  to  any  presidential  order.  Suppose,  for  ex- 
ample. General  Hovey  had  executed  the  petitioners  and 
been  therefor  indicted  for  murder,  under  the  laws  of 
Indiana,  the  President's  order  and  this  Act  of  Congress 
would  not  have  sufficed  for  his  defence.  Or  suppose  there 
had  been  a  writ  of  prohibition  sued  out  from  the  Supreme 
Court  of  Indiana  to  restrain  the  military  commission  from 
acting,  the  President's  order  and  the  Act  of  Congress 
would  not  have  been  of  themselves  a  sufficient  answer  to 
the  writ. 

There  being,  then,  no  Act  of  Congress  for  the  estab- 
lishment of  the  commission,  it  depended  entirely  upon 
the  executive  will,  for  its  creation  and  support.  This 
brings    up   the   true    question    now   before   the    Court 


36 


Has  the  President,  in  time  of  war,  by  his  own  mere  will 
and  judgment  of  the  exigency,  the  power  to  bring  before 
his  military  officers,  any  man  or  woman  in  the  land,  to 
be  there  subject  to  trial  and  punishment,  even  to  death  ? 
The  proposition  is  stated  in  this  form,  because  it  really 
amounts  to  this ;  for  even  though  these  military  officers 
were  infallible,  and  would  never  misjudge  or  mistake  the 
innocent  for  the  guilty,  yet  their  power  to  try,  is  their 
power  to  judge  all  ;  which  means  that  all,  without 
distinction,  may,  upon  charge  of  disloyal  practices,  be 
brought  before  them,  for  trial  and  sentence. 

If  the  President  has  this  awful  power,  whence  does  he 
derive  it  ?  From  the  Constitution  ?  He  can  exercise  no 
authority  whatever,  but  that  which  the  Constitution  of 
the  country  gives  him.  Bej'ond  it,  he  has  no  more  power 
than  any  other  citizen.  Our  system  knows  no  authority 
beyond  or  above  the  law.  We  may,  therefore,  once  for 
all,  dismiss  from  our  minds  every  thought  of  the  Presi- 
dent's having  any  prerogative,  as  representative  of  the 
people,  or  as  interpreter  of  the  popular  will.  He  is 
elected  by  the  people  to  perform  those  functions,  and 
those  only,  which  the  Constitution  of  his  country,  and 
the  laws  made  pursuant  to  that  constitution,  confer. 

The  plan  of  argument  which  I  propose  to  myself  is, 
first,  to  examine  the  text  of  the  Constitution.  That 
instrument,  framed  with  the  greatest  deliberation,  after 
thirteen  ^^ears'  experience  of  war  and  peace,  should  be 
accepted  as  the  authentic  and  final  expression  of  the 
public  judgment,  regarding  that  form  and  scope  of 
government,  and  those  guarantees  of  private  rights, 
which  legal  science,  political  philosophy  and  the  expe- 
rience of  previous  times  had  taught  as  the  safest  and 
most  perfect.  All  attempts  to  explain  it  away,  or  to 
evade  or  pervert  it,  should  be  discountenanced  and 
resisted.  Beyond  the  line  of  such  an  argument,  every- 
thing else  ought,  in  strictness,  to  be  superfluous.  But, 
as  our  previous  discussion  has  taken  a  wider  range,  I 
shall  endeavor  to  show%  further,  that  the  theory  of  our 
Government,  for  which  I  am  contending,  is  the  only  one 
compatible  with  civil  liberty ;  and,  lastly,  by  what  I  may 


37 


call  an  historical  argument,  that  this  theory  has  the 
concurring  testimony  of  the  judges,  lawyers  and  states- 
men of  this  country  down  to  the  time  of  the  rebellion ; 
and  that,  even  in  the  constitutional  monarchies  of  Eng- 
land and  France,  that  theory  of  executive  power,  which 
would  uphold  military  commissions,  like  the  one  against 
which  I  am  speaking,  has  never  been  admitted. 

What  are  the  powers  and  attributes  of  the  presidential 
office  ?  They  are  written  in  the  Second  Article  of  the 
Constitution,  and,  so  far  as  they  relate  to  the  present 
question,  they  are  these  :  He  is  vested  with  the  "  execu- 
tive power;"  he  is  "commander  in  chief  of  the  army 
and  navy  of  the  United  States,  and  of  the  militia  of  the 
several  States,  when  called  into  the  actual  service  of  the 
United  States;"  he  is  to  "take  care  that  the  laws  be 
faithfully  executed;"  and  he  takes  this  oath:  "I  do 
solemnly  swear  that  I  will  faithfully  execute  the  office  of 
President  of  the  United  States,  and  will,  to  the  best  of  my 
ability,  preserve,  protect  and  defend  the  Constitution  of 
the  United  States."  Here  are  all  the  words  from  which 
the  power  to  try  civilians  before  military  commissions 
can  be  derived,  if  it  exist  at  all.  Is  it  possible  to  derive 
it  from  any  of  tliem?  The  "  executive  power"  mentioned 
in  the  Constitution,  is  the  executive  power  of  the  United 
States.  The  President  is  not  clothed  with  the  executive 
power  of  the  States.  He  is  not  clothed  with  any  executive 
power,  except  as  he  is  specifically  directed  by  some  other 
part  of  the  Constitution,  or  by  an  Act  of  Congress ;  in 
other  words,  the  expression,  "executive  power,"  standing 
by  itself,  and  without  a  specification  of  what  he  is  to  exe- 
cute, would  not  enable  him  to  execute  at  all.  The  same 
expression  is  used  in  the  State  Constitutions,  and  with 
the  same  result.  For  example,  the  Constitution  of  New 
York  declares  thai  "  the  executive  power  shall  be  vested 
in  a  Governor,"  and  that  he  "  shall  take  care  that  the 
laws  are  faithfully  executed,"  while,  in  truth,  he  executes 
very  little.  The  State  officers,  as  they  are  called,  cor- 
responding with  those  which  make  the  Cabinet  of  the 
President,  are  chosen  by  the  people,  and  are  quite 
independent  of  the  Governor.     There  is  no  portion  of 


38 


the  Constitution  of  the  United  States  which  prescribes 
what  the  President  shall  do,  in  the  exercise  of  his 
*' executive  power,"  and  which  affects  the  present  ques- 
tion, except  those  which  I  have  quoted. 

We  must  recur,  then,  to  the  other  parts  of  the  Con- 
stitution which  have  been  mentioned.  The  President  is 
to  "  take  care  that  the  laws  be  faithfully  executed."  He 
is  to  execute  the  laws,  by  the  means,  and  in  the  manner, 
which  the  laws  themselves  prescribe.  For  example,  an 
Act  of  Congress  authorizing  him,  by  the  machinery  of 
custom-houses,  to  collect  the  revenues,  would  not  em- 
power him  to  stop  ships  at  sea,  and  there  exact  the 
customs.  An  Act  of  Congress  authorizing  him  to  get  up 
a  navy,  by  building  ships  and  enlisting  seamen,  would 
not  authorize  th«  impressment  of  seamen.  The  laws 
provide  not  only  what  is  to  be  done,  but  the  manner  of 
doing  it ;  and  all  these  the  President  is  to  execute. 

The  oath  of  office  cannot  be  considered  as  a  grant  of 
power.  Its  effect  is  merely  to  superadd  a  religious  sanc- 
tion to  what  would  otherwise  be  his  official  duty,  and  to 
bind  his  conscience  against  any  attempt  to  usurp  power 
or  overthrow  the  Constitution. 

There  remains,  then,  but  a  single  clause  to  discuss, 
and  that  is  the  one  which  makes  him  the  commander  in 
chief  of  the  army  and  navy  of  the  United  States,  and  of 
the  militia  of  the  States,  when  called  into  the  federal  ser- 
vice. The  question,  therefore,  is  narrowed  down  to  this  : 
Does  the  authority  to  command  an  army  carry  with  it 
authority  to  arrest  and  try  by  court  martial  civilians  ?  by 
which  I  mean  persons  not  in  the  martial  forces ;  not  im- 
pressed by  law  with  a  martial  character.  The  question 
is  easily  answered.  To  command  an  army,  whether  in 
camp,  or  on  the  march,  or  in  battle,  requires  the  control 
of  no  other  persons  than  the  officers,  soldiers,  and  camp 
followers.  It  can  hardly  be  contended  that,  if  Congress 
neglects  to  find  subsistence,  the  commander  in  chief  may 
lawfully  take  it  from  our  own  citizens.  It  cannot  be  sup- 
posed that,  if  Congress  fails  to  provide  the  means  of 
recruiting,  the  commander  in  chief  may  lawfully  force 
the   citizens   into    the   ranks.     What  is  called  the  war 


39 


power  of  the  President,  if  indeed  there  be  any  such  thing, 
is  nothing  more  than  the  power  of  commanding  the 
armies  and  fleets  which  Congress  causes  to  be  raised.  To 
command  them  is  to  direct  their  operations. 

Much  confusion  of  ideas  has  been  produced  by  mis- 
taking executive  power  for  I'mgly  power.  Because,  in 
monarchical  countries,  the  kingly  office  includes  the 
executive,  it  seems  to  have  been  sometimes  inferred,  that, 
conversely,  the  executive  carries  with  it  the  kingly  pre- 
rogative. Our  executive  is  in  no  sense  a  king,  not  even 
for  four  years.  The  difference  between  his  office  and 
that  of  the  most  constitutional  king  on  earth,  does  not 
consist  in  the  one  being  hereditary  and  the  other  elective, 
or  in  one  Being  responsible  and  the  other  irresponsible, 
or  in  the  one  being  for  life  and  the  other  for  four  years, 
but  in  the  essential  attributes  of  the  two  offices. 

Thus  far  I  have  reasoned  upon  that  article  of  the  Con- 
stitution, the  second,  which  creates  and  regulates  the 
executive  power.  If  we  turn  to  the  other  portions  of  the 
original  instrument  (I  do  not  now  speak  of  the  amend- 
ments) the  conclusion  already  drawn  from  the  second 
article  will  be  confirmed,  if  there  be  room  for  confirmation. 
Thus,  in  the  first  article.  Congress  is  authorized  "  to 
declare  war,  and  make  rules  concerning  captures  on  land 
and  water ;"  "  to  raise  and  support  armies ;"  "  to  provide 
and  maintain  a  navy ;"  "  to  make  rules  for  the  govern- 
ment and  regulation  of  the  land  and  naval  forces;"  "to 
provide  for  calling  forth  the  militia,  to  execute  the  law^s 
of  the  Union,  suppress  insurrections,  and  repel  invasions ;" 
"  to  provide  for  organizing,  arming,  and  disciplining  the 
militia,  and  governing  such  part  of  them  as  may  be  in  the 
service  of  the  United  States,  reserving  to  the  States 
respectively  the  appointment  of  the  officers,  and  the 
authority  of  training  the  militia  according  to  the  disci- 
pline prescribed  by  Congress;*'  "to  exercise  exclusive 
legislation  in  all  cases  Avhatsoever  over  ^'  ^  *  all 
places  purchased  *  ^-  ^  for  the  erection  of  forts, 
magazines,  arsenals,  dockyards ;"  "  to  make  all  laws 
which  shall  be  necessary  and  proper  for  carrying  into 
execution  the     *         *         *     powers  vested  by  this  Con- 


40 


stitution  in  the  government  of  tlie  United  States,  or  in 
any  department  or  office  thereof." 

These  various  provisions  of  the  first  article  would  show, 
if  there  were  any  doubt  upon  the  construction  of  the 
second,  that  the  powers  of  the  President  do  not  include 
the  power  to  raise  or  support  an  army  ;  or  to  provide  or 
maintain  n  nsiVj ;  or  to  call  forth  the  militia,  tg  repel  an 
invasion,  or  to  suppress  an  insurrection,  or  execute,  the 
laivs ;  or  even  to  govern  such  portions  of  the  militia  as 
are  called  into  the  service  of  the  United  States ;  or  to 
make  law  for  any  of  the  forts,  magazines,  arsenals,  or 
dockyards.  If  the  President  could  not,  even  in  flagrant 
war,  except  as  authorized  by  Congress,  call  forth  the 
militia  of  Indiana  to  repel  an  invasion  of  that  State,  or, 
when  called,  govern  them,  it  is  absurd  to  say  that  he 
could  nevertheless,  under  the  same  circumstances,  govern 
the  whole  State  and  every  person  in  it  by  martial  rule. 

The  jealousy  of  the  executive  powder  prevailed  with  our 
forefathers.  They  carried  it  so  far  that,  in  providing  for 
the  protection  of  a  State  against  domestic  violence,  they 
required,  as  a  condition,  that  the  Legislatnre  of  the  State 
should  ask  for  it,  if  it  could  be  convened.  Const.,  Art.  4, 
Sect.  4. 

I  submit,  therefore,  that  upon  the  text  of  the  original 
Constitution,  as  it  stood  when  it  was  ratified,  there  is  no 
color  for  the  assumption  that  the  President,  by  his  mere 
wall,  without  act  of  Congress,  could  create  military  com- 
missions for  the  trial  of  persons  not  military  for  any 
cause  or  under  any  circumstances  whatever.  But  as  we 
well  know,  the  Constitution,  in  the  process  of  ratification, 
had  to  undergo  the  severest  ordeal  which  any  instrument 
ever  yet  underwent  from  discussion  and  criticism  alone, 
before  actual  experiment.  Objections  w^ere  started  by 
jealousy  and  by  fear ;  dangers  were  supposed  ;  evil  con- 
sequences predicted,  and  great  apprehension  and  alarm 
created.  To  quiet  these  apprehensions,  as  well  as  to 
guard  against  any  possible  dangers,  ten  amendments 
were  proposed  by  the  first  Congress  sitting  at  New  York, 
in  1789,  and  were  duly  ratified  by  the  States.  The  third 
and  fifth  of  these  amendments  are  as  follows  : 


41 


"Art.  III.— No  soldier  shall,  in  time  of  peace,  be  quar- 
"  tered  in  any  house,  without  the  consent  of  the  owner, 
"nor  in  time  of  tear,  but  in  a  manner  to  be  prescribed  by 
"  lata:' 

"Art.  V. — 'JVb  person  shall  be  held  to  anstver  for  a 
*' capital  or  otherwise  iiifamous  crime,  unless  on  a  present- 
"  ment  or  indictment  of  a  grand  jury,  except  in  cases  arising 
"  in  the  land  or  naval  forces,  or  in  the  militia  ivhen  in  actucd 
"  service,  in  time  of  tear  or  public  danger  ;  nor  shall  any 
"  person  be  subject,  for  the  same  offence,  to  be  twice  put 
"  in  jeopardy  of  life  or  limb,  nor  shall  be  compelled  in 
"  any  criminal  case  to  be  a  witness  against  himself,  nor 
"  be  deprived  of  life,  liberty,  or  property,  without  due 
"  process  of  law,  nor  shall  private  property  be  taken  for 
"  public  use  without  just  compensation." 

If  there  could  have  been  any  doubt  whatever,  whether 
military  commissions  or  courts  martial  for  the  trial  of 
persons  not  "  in  the  land  or  naval  forces,  or  the  militia" 
in  actual  service,  could  ever  be  established  by  the  Presi- 
dent, or  even  by  Congress,  these  amendments  would  have 
removed  the  doubt.  They  were  made  for  a  state  of  war 
as  well  as  a  state  of  peace  ;  they  were  aimed  at  the  mili- 
tary authority,  as  well  as  the  civil ;  and  they  were  as 
explicit  as  our  mother  tongue,  the  language  of  freemen, 
could  make  them.  "No  soldier  shall  *  *  *  be 
quartered  in  any  house  *  ^  ^  in  time  of  ivar, 
but  in  a  manner  to  be  prescribed  by  law."  "  No  person 
shall  be  held  to  answ^er  for  a  capital  or  otherwise  infa- 
mous crime,  unless  on  a  presentment  or  indictment  of  a 
grand  jury,  except  in  cases  arising  in  the  land,  or  naval 
forces,  or  in  the  militia  when  in  active  service  in  time  of  war 
or  public  danger''  The  phrase  "  in  time  of  war  or  public 
danger,"  qualifies  the  member  of  the  sentence  relating 
to  the  militia ;  as  otherwise,  there  could  be  no  court 
martial  in  the  army  or  navy  during  peace.  Here  is  a 
clear,  unequivocal  command  of  all  the  people,  in  contem- 
plation of  a  state  of  war,  no  less  than  a  state  of  peace, 
and  stamped,  as  with  types  of  iron,  into  their  organic 
law,  that  at  no  time  shall  any  person  w^hatever  be  subject 
to  military  trial,  except  in  these  specif  ed  cases. 
6 


42 


These  amendments  were  proposed,  as  I  have  ah-eady 
stated,  in  the  first  Congress  held  under  the  Constitution  ; 
they  were  brought  in  by  Mr.  Madison,  and  their  history, 
the  form  in  wdiich  they  were  introduced,  and  the  changes 
which  they  underwent  are  most  instructive.  His  propo- 
sition in  this  respect  was  in  the  following  words  : 

"  The  trial  of  all  crimes  (except  in  cases  of  impeach- 
ment and  cases  arising  in  the  land  or  naval  forces,  or  the 
militia  when  on  actual  service  in  time  of  war  or  public 
danger)  shall  be  by  an  impartial  jury  of  freeholders  of 
the  vicinage,  wdth  the  requisite  of  unanimity  for  convic- 
tion, of  the  right  of  challenge  and  other  accustomed 
requisites  ;  and  f  in  all  crimes  punishable  with  loss  of  life 
or  member,  presentment  or  indictment  by  a  grand  juiy 
shall  be  an  indispensable  preliminary  ;  provided,  that  in 
cases  of  crimes  committed  within  any  county  which  may 
be  in]  possession  of  the  enemy,  or  in  wdiich  a  general 
insurrection  may  prevail,  the  trial  may  by  law  be  author- 
ized in  some  other  county  of  the  same  State,  as  near  as 
may  be  to  the  seat  of  the  offence. 

"  In  cases  of  crimes  not  committed  within  any  county, 
the  trial  may  by  law  be  in  such  county  as  the  laws  shall 
have  prescribed.  In  suits  at  common  law  between  man 
and  man,  the  trial  by  jury,  as  one  of  the  best  securities 
to  the  rights  of  the  people,  ought  to  remain  inviolable." 

This  w^as  referred  to  a  committee  of  eleven,  which 
struck  out  the  part  in  brackets  and  substituted  therefor 
the  following  : 

"  No  person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous  crime,  unless  on  a  presentment 
or  indictment  by  a  grand  jury ;  but  if  a  crime  be  com- 
mitted in  a  place  in  the." 

The  whole  proviso  was  struck  out  in  the  Committee 
of  the  Whole,  and  finally  the  proposition  was  reduced 
between  the  two  houses  to  the  form  in  wdiich  it  now 
stands. 

This  completes  my  argument  upon  the  text  of  the 
Constitution.  The  language  of  that  instrument  should 
set  the  matter  at  rest  forever.  There  is  no  room  left  for 
interpretation.  The  words  are  direct  and  plain.  It  would 
be  difficult  to  make  them  plainer  or  more  direct.  If  one 
should  set  himself  to  the  task  of  expressing  most  clearly 
the  intention  to  limit  and  restrain  military  jurisdiction, 


43 


lie  would  find  it  hard  to  choose  a  better  form  of  words. 
If  he  were  to  exclude  military  commissioDS  bj  name, 
that  would  perhaps  leave  the  door  open  to  the  same 
thing,  in  another  form.  The  language  used  is  general 
and  comprehensive.  "  No  person  shall  be  held  to  answer 
for  a  capital  or  otherwise  infamous  crime,  unless  on  a 
presentment  or  indictment  of  a  grand  jury,"  <fec.  This 
solemn  declaration  of  the  whole  people,  set  in  their  great 
organic  charter,  ought  forever  to  command  obedience 
and  preclude  debate. 

Kespect  for  the  constitution,  and  absolute  conformity 
to  all  that  it  enjoins,  are  indispensible  to  the  preservation 
of  our  freedom.  Kespect  for  the  constitution  is  but  one 
form  of  respect  for  law.  The  constitution  is  the  highe!<t 
of  all  human  laws.  The  respect,  of  which  I  speak,  is  not 
regard  for  a  mere  instrument,  nor  a  blind  devotion  to 
forms,  but  a  sentiment  and  a  conviction  founded  in  nature 
and  justified  by  political  philosophy  and  the  profound  est 
policy.  Loyalty  with  us  is  not  of  that  lower  form  which 
attaches  itself  to  an  individual  or  a  family,  but  of  that 
which  is  higher,  and  attaches  itself  to  the  state  and  the 
nation  ;  when  these  speak,  they  speak  through  the  laws  ; 
and  he  who  treats  them  with  disregard,  is  disloyal  to  his 
sovereign. 

Pardon  me  for  referring  to  these  truisms.  We  have 
fallen  upon  evil  times  ;  we  have  fallen  upon  times  when 
there  is  less  respect  than  there  used  to  be  for  the  consti- 
tution and  the  laws.  We  know  that  the  mention  of  the 
constitution  almost  provokes  a  sneer  or  a  smile  in  some 
parts  of  the  country,  and  in  some  political  bodies.  Our 
forefathers  thought  and  felt  diff'erently.  Washington,  in 
his  farewell  address,  gave  us  this  advice  : 

"  This  government,  the  offspring  of  our  own  choice,  un- 
influenced and  unawed,  adopted  upon  full  investigation 
and  mature  deliberation,  completely  free  in  its  principles, 
in  the  distribution  of  its  powers,  uniting  security  witJi 
energy,  and  containing  within  itself  a  provision  for  its 
own  amendment,  has  a  just  claim  to  your  confidence  and 
your  support.  Respect  for  its  authority,  compliance 
with  its  laws,  acquiescence  in  its  measures^  are  duties  en- 


44 


joined  by  the  fundamental  maxims  of  true  liberty." 
In  our  abundant  prosperity,  in  the  peace  and  order  with 
which  affairs  have  proceeded  in  this  country  up  to  the 
period  of  the  rebellion,  we  have  appeared  almost  to  forget 
the  fundamental  maxims  of  liberty.  It  is  good  for  us  to 
recur  to  them.  As  expressed  in  the  original  Constitution 
of  Massachusetts,  "  a  frequent  recurrence  to  the  princi- 
ples of  the  constitution  is  one  of  the  things  absolutely 
necessary  to  preserve  the  advantages  of  liberty,  and  to 
maintain  a  free  government."  It  is  the  great  problem 
of  the  time,  whether  we  can  govern  ourselves  so  far  as 
to  adhere  inflexibly  to  the  written  constitution  we  have 
ourselves  prescribed.  Union  we  are  certain  of.  The 
Almighty  has  impressed  upon  this  continent  the  features 
which  will  always  make  us  a  people  one  and  indivisible. 
The  great  central  valley  of  the  Mississippi  will  lay  its 
hands  upon  the  Atlantic  and  Pacific  slopes,  and  keep 
them  together  as  with  clamps  of  iron.  The  problem  is, 
how  we  shall  be  governed  ;  what  rights  we  shall  possess. 
A  consolidated  government  cannot  exist  on  this  con- 
tinent, unless  it  be  monarchical.  To  maintain  a  govern- 
ment under  which  we  can  be  free,  we  must  preserve  the 
Union  and  the  States,  all  in  the  plenitude  of  their  rightful 
powers ;  indestructible  elements  and  parts  of  the  system 
E  Plurihus  Unum,,  must  be  the  motto  on  our  hearts,  as 
on  our  escutcheon  ;  one  Union  and  many  States,  each 
essential  to  all  the  rest. 

A  pure  democracy,  that  is  to  say  a  government  in 
which  all  the  people  in  their  primary  assemblies  make 
the  laws  is  possible  only  in  small  towns.  Representative 
government  can  be  preserved  only  through  the  restraint 
of  a  written  constitution  or  the  restraint  of  hereditary 
power.  Where  the  representative  can  do  as  he  pleases 
or  as  his  constituents  please,  without  one  of  these  re- 
straints, anarchy  will  follow  and  then  despotism. 

The  true  end  of  government  is  to  leave  each  individual 
in  the  enjoyment  of  his  natural  freedom,  to  the  utmost 
extent  possible,  consistently  with  the  like  freedom  for  all 
the  rest.  That  government  only  is  tolerable,  in  which 
I  can  sit  by  my  own  fireside,  and  no  man  shall  dare  to 


45 


e]iter  but  with  my  leave,  except  by  virtue  of  a  legal  warrant 
prescribed  in  known  and  standing  laws.  Such  cannot 
continue  to  be  our  condition,  unless  we  preserve  forever 
intact  and  intangible  that  sentence  of  the  fundamental 
law  ;  "  the  powers  not  delegated  to  the  United  States  by 
the  Constitution,  nor  prohibited  by  it  to  the  States,  are 
reserved  to  the  States  respectively,  or  to  the  people." 
Whoever  therefore  counsels,  encourages  or  acquiesces  in 
a  departure  from  the  fundamental  law,  strikes  at  the 
foundation  of  our  freedom. 

Having  thus  gone  through  with  the  argument  upon  the 
text  of  the  Constitution,  and  shown,  that  it  not  only  gives 
no  sanction  to  such  extraordinary  tribunals  as  this  mili- 
tary commissKm,  but  that  it  expressly  prohibits  them  ;  I 
will  proceed  further,  and  show  tliat  military  tribunals  for 
civilians,  or  non-military  persons,  whether  in  war  or  peace, 
are  inconsistent  with  the  liberty  of  the  citizen,  and 
can  have  no  place  in  constitutional  government ;  and  that 
just  in  proportion  as  the  government  of  a  country  becomes 
constitutional,  in  that  proportion  the  possibility  of  martial 
rule,  except  for  martial  persons,  is  limited  or  taken  away. 

This  is  a  legitimate  argument  even  upon  a  question  of 
interpretation  ;  for  if  there  be,  as  I  think  there  is  not, 
room  left  for  interpretation  of  what  seem  to  be  the  plain 
provisions  of  the  Constitution,  then  the  principles  of 
liberty,  as  they  were  understood  by  the  Fathers  of  the 
Republic ;  the  maxims  of  free  government,  as  they  were 
accepted  by  the  men  who  framed  and  those  who  adopted 
the  Constitution  ;  and  those  occurrences  in  the  history  of 
older  states,  which  they  had  profoundly  studied,  may  be 
called  in  to  show  us  what  they  must  have  meant  by  the 
words  they  used. 

In  the  first  place,  let  us  consider  for  a  moment  w^hat 
would  be  the  condition  of  the  country,  if  the  fundamental 
law  were  otherwise  than  as  I  have  stated  it.  The  Presi- 
dent would  become  in  time  of  war,  foreign  or  domestic, 
an  actual  dictator.  He  could  swallow  up  every  other 
power  in  the  State. 

Our  learned  opponents  so  understand  it.  They  boldly 
avow  it.  Here  are  three  extracts  from  the  printed  brief 
of  the  Attorney  General  and  General  Butler  : 


46 


"  Martial  law  is  the  will  of  tho  commandiug  oiiicer  of 
an  armed  force,  or  of  a  geographical  military  department, 
expressed  in  time  of  war  within  the  limits  of  his  military- 
jurisdiction,  as  necessity  demands  and  prudence  dictates, 
restrained  or  enlarged  by  the  orders  of  his  military  chief, 
or  supreme  executive  ruler,     ^         ^^        » 

^  4f  ^f  '« r^i^Q  officer  executing  martial  law  is  a^ 
the  same  time  supreme  legislator,^  supreme  judge,  and 
supreme  executive.  As  necessity  makes  his  will  the  law, 
he  only  can  define  and  declare  it ;  and  whether  or  not  it 
is  infringed,  and  of  the  extent  of  the  infraction,  he  alone 
can  judge ;  and  his  sole  order  punishes  or  acquits  the 
alleged  offender.     ^-         «         ^ 

^  *  *  "  It  is  a  familiar  exercise  of  martial  law 
to  allow  the  Courts  of  a  country,  when  it  may  be  done 
with  safety,  to  perform  their  ordinary  functions  in  regard 
to  crimes  committed  among  the  people  toward  each  other, 
but  rarely,  if  ever,  is  any  jurisdiction  permitted  of  crimes 
affecting  the  safety,  well-being,  or  movements  of  the 
t^ccupying  army. 

"  But  such  exercise  of  civil  poAver  is  wholly  permissive, 
and  subordinate  to  the  military  power  ;  and  whether  it 
shall  be  exercised  at  all,  is  entirely  within  his  discretion." 

That  notion  of  executive  power  which  would  make  it 
competent  to  bring  civilians  before  military  commissions. 
Tests  upon  the  theory,  that  the  commander  in  chief  may 
do  whatsoever  is  necessary  to  promote  the  success  of  his 
armies,  and  that  he  is  the  sole  judge  of  that  necessity.  If 
any  Governor  of  any  State,  or  any  State  Legislature,  or 
any  of  the  Courts  of  the  States  stand  in  his  way,  the 
military  tribunal  is  at  hand  to  try,  and  the  military 
platoon  to  arrest  and  execute.  I  know  not,  indeed,  why 
Congress  or  the  Supreme  Court  are  sacred.  Certainly, 
the  individual  members  of  Congress,  and  the  individual 
members  of  this  Court,  must  be  answerable  to  military 
tribunals,  like  other  civilians.  For  if  the  war  power  may 
judge  civilians,  it  uisij  judge  all  civilians. 

Do  not  say,  that  no  person  will  be  brought  before 
these  military  judges,  but  disloyal  persons,  who  interfere 
with  the  operations  of  the  armies.    Who  is  to  decide  this 


47 


very  question  of  disloyalty  or  interference?  I  leave  yonr 
presence  and  as  I  pass  out  of  the  portico  of  this  capitol,  I 
meet  a  lieutenant,  with  a  file  of  soldiers.  He  says  to  me, 
"  You  are  a  disloyal  citizen,  sir  ;  you  have  interfered  with 
the  operations  of  the  troops."  I  deny  it.  But  he  replies, 
"I  will  organize  a  drumhead  court  martial,  or  military 
commission," — for  I  dare  say  he  will  give  the  milder 
name — "  and  I  will  try  you."  Such  a  trial  can  have  but 
one  result.  "  Courts  martial  are  organized  to  convict," 
says  a  high  authority. 

If  this  power  belongs  to  the  commander  in  chief, 
as  commander  of  the  whole  army,  it  belongs  to  every 
other  commander  in  his  own  sphere ;  for,  if  it  exists  at 
all,  it  is  an  incident  of  the  command  of  military  forces. 
Acts  of  Congress  do  not  give  it ;  Acts  of  Congress  cannot 
take  it  away.  It  inheres  in  the  military  office,  and  goes 
with  it  wherever  it  goes. 

This  will  not  only  be  true  of  the  national  forces,  but  it 
will  be  true  of  the  State  forces.  The  Governor  of  each 
State  is  as  much  commander  in  chief  of  the  State  forces, 
as  the  President  is  commander  in  chief  of  the  national 
forces.  The  Constitution  of  New  York,  for  example, 
declares  that  "the  Governor  shall  be  commander  in 
chief  of  the  military  and  naval  forces  of  the  State." 
And  again  :  "  When  the  Governor  shall,  with  the  consent 
of  the  Legislature,  be  out  of  the  State  in  time  of  war,  at 
the  head  of  a  military  force  thereof,  he  shall  continue 
commander  in  chief  of  all  the  militarj^  force  of  the  State." 
Any  State,  it  will  be  remembered,  may,  according  to  the 
Constitution  of  the  United  States,  "  engage  in  war,"  at 
any  time,  with  the  consent  of  Congress  ;  and  without  it, 
when  "  actually  invaded,  or  in  such  imminent  danger  as 
will  not  admit  of  delay."  Upon  the  theory  of  the  war 
powder  which  I  am  now  combatting,  the  condition  of  this' 
federal  republic  of  ours  would  be  singularly  deplorable 
and  perilous,  with  our  one  federal  commander  in  chief, 
our  thirty-six  State  commanders  in  chief,  and  any 
number  of  subordinate  commanders,  all  armed  with  the 
power  to  supersede  every  other  tribunal  but  their  own  ; 
and  their  own  to  constitute,  when  they  please,  of  whom 
they  please,  and  /o?^  ivhom  they  please. 


48 


If  the  power  exists  independent  of  Congress,  it  may  be 
exercised  in  any  form  which  the  commander  may  choose  ; 
persons  may  be  arrested  with  or  without  warrant ;  they 
may  be  imprisoned  with  or  without  information  of  the 
cause  of  imprisonment ;  they  may  be  brought  to  trial 
before  a  board  of  officers  or  privates  ;  their  judges  may 
be  partial  or  impartial ;  the  evidence  may  be  legal  or 
illegal,  or  there  may  be  none  at  all ;  the  sentence  may  be 
verbal,  and  carried  into  effect  without  written  order  of 
any  kind.  It  is  not  an  answer,  to  say  that  this  is  most 
unlikely  to  happen — nay,  that  it  is  most  improbable. 
We  are  not  considering  probabilities,  but  possibilities. 
It  might  happen.  The  will  of  the  commander  in  chief, 
or  of  his  subordinates,  could  not  be  controlled  by  Con- 
gress, and  miglit  be  exerted  in  an  irregular  and  tyrannical 
manner. 

It  would  not  be  a  legal  argument  in  favor  of  military 
commissions  for  civilians,  even  if  it  could  be  proved  that 
civil  tribunals  are  inadequate  to  administer  that  swift 
justice  which  the  exigencies  of  war  may  sometimes 
demand.  That  would  be  an  argument  for  amending  the 
Constitution,  not  for  perverting  it.  But  it  has  not  been 
proved  that  the  civil  tribunals  are  not  sufficient  for  the 
trial  of  civilians.  Congress  can  create  as  many  Courts 
as  it  will ;  can  endow  them  with  functions  adequate  to 
any  emergency ;  can  make  their  processes  as  short  and 
effective  as  the  fiercest  lover  of  quick  justice  could  desire^ 
and  can  prescribe  such  qualifications  for  jurors,  wherever 
juries  are  necessary,  as  to  insure  a  decision  according  to 
the  law  and  the  evidence.  Whoever  desires  more  than 
that,  desires  not  justice,  but  injustice ;  not  freedom  and 
safety,  but  tyranny  and  peril. 

If  the  law  were  otherwise,  if  our  system  of  government 
did  really  sanction  or  tolerate  such  a  use  or  abuse  of 
military  power,  then  I  know  not  how  we  can  condemn 
either  the  theory  or  the  practice  of  the  governments  of 
continental  Europe,  or  boast  of  our  superiority  in  either. 
What  is  it  that  separates  us  from  them  ?  What  is  it  that 
gives  us  a  right  to  boast  that  we  are  superior  in  our 
guarantees  of  civil  rights  ?    Private  rights  are  as  well  pro- 


49 


tectecl  in  many  parts  of  that  continent  as  tliev  are  here. 
Justice  between  man  and  man  has  long  been  administered 
by  upright  magistrates  and  under  impartial  laws.  Why, 
then, the  difference  between  them  and  us?  It  is  because 
the  regal  power,  commanding  military  forces  there  exer- 
cises military  jurisdiction  over  the  citizens.  In  time  of 
war,  say  my  learned  friends,  these  powers  may  be  exer- 
cised here.  If  so,  thegovernments  are  right  there.  Their 
normal  condition,  it  might  almost  be  said,  is  that  of 
war,  foreign  or  domestic.  For  the  last  hundred  and 
sixty-fiTe  years,  that  is,  since  the  beginning  of  the  war  of 
the  Spanish  Succession,  there  has  not  been  tranquility 
throughout  that  continent  for  a  single  decade.  France 
was  at  war  with  for  ign  nations  with  scarcely  an  interval 
down  to  1815,  and  was  convulsed  by  civil  wars  for  many 
years.  Spain,  Austria,  Prussia,  and  Eussia  had  a  like 
experience  of  foreign  war.  Armies,  on  a  gigantic  footing, 
have  been  constantly  maintained.  From  Archangel  to 
Gibraltar,  Europe  has  been  a  vast  camp.  If  a  republican 
president,  because  he  is  commander  in  chief  of  the  army 
and  navy,  can  rightfully  create  military  tribunals  for  the 
trial  of  civilians  in  time  of  war,  much  more  rightfully 
could  the  kings  of  the  elder  continent  do  the  same  at  the 
head  of  their  great  armies,  in  the  plenitude  of  their  kingly 
offices,  and  with  scarcely  a  restraint  in  the  shape  of  con- 
stitutions, parliaments,  diets,  or  states  general.  If  the 
doctrine  or  the  practice  is  to  be  enforced  among  us,  let 
us  hear  less  of  the  military  prisons  of  Austria  and  Spain. 

The  source  and  origin  of  the  power  to  establish  military 
commissions,  if  it  exist  at  all,  is  in  the  assumed  power  to 
declare  what  is  called  'martial  laiu.  I  say  what  is  called 
martial  law  ;  for  strictly,  there  is  no  such  thing  as  martial 
law ;  it  is  martial  rule;  that  is  to  say,  the  will  of  the  com- 
manding officer  and  nothing  more,  nothing  less.  Let  us 
see  if  there  be  under  our  system  any  such  power  vested 
in  the  President,  and  if  there  be,  whence  is  it  derived, 
and  what  are  its  limits. 

On  this  subject,  as  on  many  others,  the  incorrect  use  of 
a  word  has  led  to  great  confusion  of  ideas  and  to  great 
abuses.  People  imagine,  when  they  hear  the  expression, 
7 


5a 


martial  law,  that  there  is  a  system  of  law  known  by  that 
name,  which  can  upon  occasion  be  substituted  for  the 
ordinary  system  ;  and  there  is  a  prevalent  notion,  tbat 
under  certain  circumstances  a  military  commander  may, 
by  issuing  a  proclamation,  displace  one  system,  the  civil 
law,  and  substitute  another,  the  martial.  A  moment's 
reflection  will  show  that  this  is  an  error.  Law  is  a  rule 
of  property  and  of  conduct,  prescribed  by  the  sovereign 
power  of  the  State.  The  civil  code  of  Louisiana  defines 
it  as  ''  a  solemn  expression  of  legislative  will."  Black- 
stone  calls  it  "  a  rule  of  civil  conduct  prescribed  by  the 
supreme  power  in  the  State,"  ^  ^  ^  "  not  a  tran- 
sient, sudden  order  from  a  superior  to  or  concerning  a 
particular  person,  but  something  permanent,  uniform, 
and  universal."  Demosthenes  thus  explains  it:  "The 
design  and  object  of  laws  is  to  ascertain  what  is  just, 
honorable,  and  expedient ;  and  when  that  is  discovered, 
it  is  proclaimed  as  a  general  ordinance,  equal  and  impar- 
tial to  all." 

There  is  a  system  of  regulations  known  as  the  rules 
and  articles  of  war,  prescribed  by  Congress  for  the  gov- 
ernment of  the  army  and  navy,  under  that  clause  of  the 
Constitution  which  empowers  Congress  "  to  make  rules 
for  the  government  and  regulation  of  the  land  and  naval 
forces."  This  is  generally  known  as  military  law.  See 
Mills  agt.  Martin,  19  John.,  722 ;  Martin  agt.  Mott,  12 
Wheat.,  19 ;  1  Kent's  Com,,  370,  note. 

There  are  also  certain  usages^  sanctioned  by  time,  for 
the  conduct  towards  each  other  of  nations  engaged  in 
war,  known  as  the  usages  of  war,  or  the  jus  belli,  accepted 
as  part  of  the  law  of  nations,  and  extended  from  national 
to  all  belligerents.  These  respect,  however,  only  the 
conduct  of  belligerents  towards  each  other,  and  have  no 
application  to  the  present  case. 

What  is  ordinarily  called  martial  law,  is  no  law  at  all. 
Wellington,  in  one  of  his  despatches  from  Portugal  in 
1810,  explained  it  in  this  manner  : 

"  I  think  it  would  be  desirable  to  define  with  precision 
our  ideas  respecting  the  establishment  of  military  law 
before  we  determine  to  alter  the  established  law  of  the 
country  in  any  case. 


51 


"  The  following  questions  are  worth  consideration  and 
decision  on  this  topic.  What  is  military  law  ?  Military 
law,  as  applied  to  any  persons,  excepting  the  officers, 
soldiers,  and  followers  of  the  army,  for  whose  government 
there  are  particular  provisions  of  law  in  all  well  regulated 
countries,  is  neither  more  nor  less  than  the  will  of  the 
general  of  the  army.  He  punishes  either  with  or  without 
trial,  for  crimes  either  declared  to  be  so,  or  not  so  de- 
clared by  any  existing  law,  or  by  his  own  orders.  This 
is  the  plain  and  common  meaning  of  the  term  military 
law.  Besides  the  mode  of  proceeding  above  described, 
laws  have  been  made  in  different  countries,  at  different 
times,  to  establish  and  legalize  a  description  of  military 
constitution. 

"  The  commander  in  chief,  or  the  Government,  has  been 
authorized  to  proceed  by  military  process — that  is,  by 
court  martial,  or  council  of  war — against  persons  offend- 
ing against  certain  laws,  or  against  their  own  orders, 
issued  generally  for  the  security  of  the  army,  or  for  the 
establishment  of  a  certain  government  or  constitution 
odious  to  the  people  among  whom  it  is  established. 

"  Of  both  descriptions  of  military  law,  there  are  nu- 
merous instances  in  the  history  of  the  operations  of  the 
French  army  during  the  Eevolution  ;  and  there  is  an 
instance  of  the  existence,  both  of  the  first  mentioned 
description  and  of  the  last  mentioned,  in  Ireland,  during 
the  rebellion  of  1798,  when  the  people  were  in  insurrec- 
tion against  the  Government,  and  were  to  be  restrained 
by  force." 

And  in  his  speech  on  the  Gey  Ion  affair,  he  repeats  the 
description  : 

"I  contend,  that  martial  law  is  neither  more  or  less 
than  the  will  of  the  general  who  commands  the  army. 
In  fact,  martial  law  means  no  law  at  all ;  therefore,  the 
general  who  declares  martial  law,  and  commands  that  it 
shall  be  carried  into  execution,  is  bound  to  lay  down 
distinctly  the  rules,  and  regulations,  and  limits,  according 
to  which  his  will  is  to  be  carried  out.  Now,  I  have,  in 
another  country,  carried  out  martial  law  ;  that  is  to  sa}^, 
I  have  governed  a  large  proportion  of  the  population  of 


52 


a  country  by  my  own  will.  But  then,  what  did  I  do  ?  I 
declared  that  the  country  should  be  governed  according 
to  its  own  national  law,  and  I  carried  into  execution  that, 
my  so  declared  will." 

There  can  be  no  pretence  that  a  military  constUation, 
such  as  IS  mentioned  by  the  Duke  of  Wellington,  in  his 
dispatch,  or  any  like  it,  was  ever  established  in  this 
country.  Congress  has  never  made  the  attempt ;  and 
if  it  had,  it  could  not  have  succeeded,  for  lack  of  power 
under  the  Constitution  of  the  United  States.  The  other 
description  of  military  government  is  the  one  with  which 
we  have  here  to  deal ;  that  is  to  say,  the  loill  of  the  general 
commanding  the  armj^  or.  as  I  think  it  should  be  desig- 
nated, martial  rule. 

Let  us  call  the  thing  by  its '  right  name ;  it  is  not 
martial  laiv,  but  martial  ride.  And  when  we  speak  of  it, 
let  us  speak  of  it  as  abolishing  all  law,  and  substituting 
the  will  of  the  military  commander,  and  we  shall  give  a 
true  idea  of  the  thing,  and  be  able  to  reason  about  it, 
with  a  clear  sense  of  what  we  are  doing.  Thus  explained, 
the  proposition  for  which  the  counsel  on  the  other  side 
argue,  and  against  w^hich  we  argue,  is,  that  the  President, 
in  a  time  of  war,  has  the  power  to  abrogate  all  law,  and 
substitute  his  own  will  in  its  place. 

Another  expression,  much  used  in  relation  to  the  same 
subject,  has  led  also  to  misapprehension  ;  that  is,  the 
declaration,  or  proclamation^  of  martial  rule  ;  as  if  a  formal 
promulgation  made  any  difference.  It  makes  no  differ- 
ence whatever.  If  a  general  or  commander  in  chief  has 
the  right  to  enforce  martial  rule,  upon  those  who  are  not 
members  of  his  army,  be  may  enforce  it  without,  as  well 
as  with,  a  proclamation.  All  the  purpose  Avhich  that 
effects,  is  to  give  notice  of  the  fact. 

What,  it  may  be  asked,  may  a  general  never  in  any 
case  use  force  but  to  enforce  submission  in  the  opposite 
army  and  obedience  in  his  own  !  I  answer,  yes ;  there 
are  cases  in  which  he  may.  There  is  a  maxim  of  our 
law  which  gives  the  reason  and  the  extent  of  the  power. 
''  Necessitas  quod  cogit  dcfendit.''  This  is  a  maxim  not 
peculiar  in  its  application  to  military  men ;  it  applies  to 


53 


all  men  under  certain  circumstances.  If  Grant,  witli  his 
arm}^  were  at  one  end  of  Pennsylvania  Avenue,  and  Lee 
with  his  at  the  other,  and  it  were  a  necessity,  in  the  stress 
of  battle,  to  take  possession  of  this  building,  you  might 
be  driven  from  your  seats,  and  the  members  of  the  two 
houses  of  Congress  from  theirs  ;  and  so,  too,  if  a  fire  were 
here  raging,  and  the  firemen  found  it  necessary  to  take 
possession  in  order  to  extinguish  the  flames,  they  might 
drive  judges,  senators,  and  representatives  from  their 
chambers.  These  actions,  both  of  the  military  and  of  the 
firemen,  would  be  justified  by  the  same  rule  of  necessity, 
and  be  lawful  under  the  same  rule  of  law ;  but  this  would 
not  be  because  there  was  such  a  law  as  martial  law  or 
firemen's  law. 

Private  persons  may  lawfully  tear  down  a  house,  if 
necessaiy,  to  prevent  the  spread  of  a  fire.  Indeed,  the 
maxim  is  not  confined  in  its  application  to  the  calamities 
of  war  and  conflagration.  A  mutiny,  breaking  out  in  a 
garrison,  may  make  necessary  for  its  suppression,  and 
therefore  justify,  acts  which  would  otherwise  be  unjusti- 
fiable. In  all  these  cases,  however,  the  person  acting 
under  the  pressure  of  necessity,  real  or  supposed,  acts  at 
his  peril.  The  correctness  of  his  conckision  must  be 
judged  by  courts  and  juries  whenever  the  acts  and  the 
alleged  necessity  are  drawn  in  question. 

The  creation  of  a  commission  or  board  to  decide  or  advise 
upon  the  subject,  gives  no  increased  sanction  to  the  act. 
As  necessity  compels,  so  that  necessity  alone  can  justify 
it.  The  decision  or  advice  of  any  number  of  persons, 
whether  designated  as  a  military  commission,  or  board  of 
officers,  or  council  of  war,  or  as  a  committee,  proves 
nothing  but  greater  deliberation  ;  it  does  not  make  legal 
what  would  otherwise  be  illegal.  In  this  view,  the  mil- 
itary commission  in  the  present  case  had  no  vitality, 
except  as  representing  the  commanding  officer ;  what  he 
might  do  in  execution  of  their  sentence,  he  might  do 
without  it.  The  petitioners  might  liave  been  executed 
by  him  on  the  spot,  without  any  form  of  trial,  with  the 
same  legal  justification  as  they  could  have  been  executed 
upon  the  finding  and  sentence  actually  rendered. 


54 

Passing  now  from  these  topics,  if  the  Court  please,  I 
will  proceed  to  the  Idstorical  part  of  this  argument ;  in 
the  course  of  which  I  propose  first,  to  ask  your  attention 
to  occurrences  in  our  own  country,  and  afterwards  to 
what  has  taken  place  in  England  and  in  France. 

First,  as  to  our  oion  country.  The  nation  began  its  life 
in  1776,  with  a  protest  against  military  usurpation.  It 
was  one  of  the  grievances  set  forth  in  the  Declaration  of 
Independence,  that  the  king  of  Great  Britain  had 
*' affected  to  render  the  military  independent  of  and 
superior  to  the  civil  power."  The  attempts  of  General 
Gage,  in  Boston,  and  of  Lord  Dunmore,  in  Virginia,  to 
enforce  martial  rule,  excited  the  greatest  indignation. 
Our  fathers  never  forgot  their  principles  ;  and  though 
the  war  by  which  they  maintained  their  independence 
was  a  revohi'djjiary  one,  though  their  lives  depended  0:1 
their  success  in  arms,  they  always  asserted  and  enforced 
the  subordination  of  the  military  to  the  civil  arm. 

The  commission  by  which  Washington  was  made 
"General  and  Commander  in  Chief  of  the  American 
Forces,"  began  thus  : 

"  We,  reposing  special  trust  and  confidence  in  your 
patriotism,  valor,  conduct,  and  fidelity,  do,  by  these  pres- 
ents, constitute  and  appoint  you  to  be  General  and  Com- 
mander in  Chief  of  the  army  of  the  United  Colonies,,  and 
of  all  the  forces  now  raised,  or  to  be  raised  by  them,  and 
of  all  others  who  shall  voluntarily  offer  their  services  and 
join  the  said  army  for  the  defence  of  American  liberty, 
and  for  repelling  every  hostile  invasion  thereof:  and  you 
are  hereby  vested  with  full  power  and  authority  to  act  as 
you  shall  think  for  the  good  and  welfare  of  the  service." 

And  his  instructions  closed  with  these  memorable 
words  : 

"And  whereas  all  particulars  cannot  be  forseen,  nor 
positive  instructions  for  such  emergencies  so  beforehand 
given,  but  that  many  thhigs  must  be  left  to  your  prudent 
and  discreet  management,  as  occurrences  may  arise  upon 
the  place,  or  from  time  to  time  fall  out,  you  are,  there- 
fore, upon  all  such  accidents,  or  any  occasion  that  may 
happen,  to  use  your  best  circumspection ;  and,  advising 


55 


with  your  council  of  war,  to  order  and  dispose  of  the  said 
army  under  your  command  as  may  be  most  advantageous 
for  the  obtaining  of  the  end  for  which  these  forces  have 
been  raised,  making  it  your  special  care,  in  discharge  of 
the  great  trust  committed  unto  you,  that  the  liberties  of 
America  receive  no  detriment." 

These  last  words  were  nearly  the  formula  of  the  Romans 
when  they  chose  a  dictator. 

Here  was  the  plenitude  of  military  power.  If  there 
was  ever  one  who,  by  virtue  of  supreme  command,  had 
the  legal  and  moral  right  to  exercise  martial  rule  over 
civilians ;  who,  with  any  show  of  reason,  could  turn  to  a 
military  purpose  that  much  abused  maxim,  ficdus  populi 
supreuia  lex,  it  was  Washington,  in  those  perilous  days 
when  tories  surrounded  his  camp,  carried  intelligence  to 
his  enemies,  and  sowed  distrust  among  his  own  people. 
The  autumn  of  1777,  and  the  succeeding  winter,  were  the 
darkest  times  of  the  Revolution.  Then,  if  ever,  supreme 
military  command  might  have  claimed  the  prerogative  of 
taking  to  itself  absolute  control. 

There  were,  indeed,  committees  of  public  safety,  and 
other  irregular  bodies.  Yet  I  do  not  find  that  Washing- 
ton ever  subjected  civilians  to  military  trial  or  military 
control,  except  in  execution  of  particular  and  express 
injunctions  from  Congress  or  other  civil  authority.  When, 
on  one  occasion,  the  arrest  and  detention  of  disaffected 
persons  was  thought  necessary,  Congress  requested  the 
interposition  of  the  civil  authority,  by  the  following  reso- 
lution : 

"  JVhercas,  The  States  of  Pennsylvania  and  Delaware 
are  threatened  with  immediate  invasion  from  a  powerful 
army,  who  have  ah^eady  landed  at  the  head  of  Chesapeake 
Bay ;  And  whereas,  principles  of  policy  and  of  self-pre- 
servation require  that  all  persons  who  may  be  reasonably 
suspected  of  aiding  or  abetting  the  cause  of  the  enemy, 
may  be  prevented  from  pursuing  measures  injurious  to 
the  pubhc  weal : 

"  RcHolvei^,  That  the  executive  authority  of  the  States 
of  Pennsj'lvauia  aud  Delaware  be  requested  to  cause  all 
persons  within  their  respective  States,  notoriously  dis- 


affected,  forthwith  to  be  apprehended,  disarmed,  and 
secured,  till  such  time  as  the  respective  States  think  tliej 
can  be  released  without  injury  to  the  common  cause." 

The  Legislature  of  Pennsylvania,  thereupon,  passed  an 
act  to  empower  the  Supreme  Executive  Council  of  this 
Commonwealth  to  provide  for  the  security  thereof  in 
special  cases  where  no  provision  is  already  made  by  law, 
as  follows : 

"  Whereas  the  preservation  of  this  State  and  of  all  its 
members,  and  of  the  army  acting  in  support  thereof  at 
the  time  of  a  hostile  invasion,  may  require  the  imme- 
diate interposition  of  the  Supreme  Executive  Council, 
when  the  judicial  powers  of  the  Government  cannot,  in 
the  ordinary  course  of  law,  sufficiently  provide  for  its  se- 
curity ; 

"  And  whereas  for  this  important  purpose  the  Supreme 
Executive  Council  of  this  Commonwealth  have  lately,  at 
the  recommendation  of  Congress,  taken  up  several  per- 
sons who  have  refused  to  give  to  the  State  the  common 
assurance  of  their  fidelity  and  peaceable  behavior,  as  re- 
quired by  law,  and  it  is  apprehended  that  there  are  still 
more  such  persons  among  us  who  cannot,  at  this  juncture? 
be  safely  trusted  with  their  freedom  without  giving  proper 
security  to  the  public  : 

"  Be  it  therefore  enacted,  and  it  is  hereby  enacted,  by 
the  Representatives  of  the  freemen  of  the  Commonwealth 
of  Pennsylvania  in  General  Assembly  met,  and  by  the 
authority  of  the  same,  That  it  may  and  shall  be  lawful 
for  the  President  or  Yice  President,  and  the  members  of 
the  Supreme  Executive  Council  of  this  State,  or  any  two 
of  them,  either  upon  the  recommendation  of  Congress,  or  at 
the  requisition  of  the  Commander  in  Chief  of  the  army,  or 
the  commander  of  a  division  or  corps  in  the  same,  or  upon 
the  information  of  any  credible  subject  of  this  or  any 
other  of  the  United  States,  to  arrest  any  person  or  per- 
sons within  this  Commonwealth  who  shall  be  suspected 
from  any  of  his  or  her  acts,  writings,  speeches,  conversa- 
tions, travels,  or  other  behavior,  to  be  disaffected  to  the 
commuuity  of  this,  or  all,  or  any  of  the  United  States  of 
America,  or  to  be  an  harbinger  of  the  common  enemy  who 


is  at  our  gates,  or  to  give  mediate  or  immediate  intelli* 
gence  and  warning  to  their  commanders  by  letters,  mes- 
sengers, or  tokens,  or  by  discouraging  people  from  taking 
up  arms  for  the  defense  of  the  country,  or  spreading  false 
news,  or  doing  any  other  thing  to  subvert  the  good  order 
and  regulations  which  are  or  may  be  pursued  for  the 
safetj^  of  the  country,  and  to  seize  and  examine  such 
papers  in  their  possession  as  shall  in  anywise  affect  the 
public  ;  and  the  same  persons  being  arrested,  to  confine 
and  remove  them  to  any  distant  place,  where  it  will  be  out 
of  their  power  to  disturb  the  peace  and  safety  of  the 
States ;  or  to  tender  to  them  the  oath  or  affirmation  of 
allegiance  or  fidelity  to  the  State,  as  directed  by  law,  and 
upon  taking  or  subscribing  the  same,  to  enlarge  them, 
or  to  demand  and  take  such  other  and  further  security 
and  assurance  from  them  as  the  said  President  or  Vice 
President  and  Council,  or  any  two  of  them  in  their  dis- 
cretion shall  think  proper,  or  as  the  particular  circum- 
stances of  the  case  may  require." 

Tliis  act  then  went  on  to  indemnify  for  past  transac- 
tions. 

This  was  all  superfluous,  if  the  argument  of  our 
friends  on  the  other  side  rests  on  a  good  foundation. 
The  military  arm  was  already  competent  to  do  as 
much,  and  more  ;  and  the  ceremony  of  a  "  requisition 
of  the  commander  in  chief  of  the  army,"  made  to  the 
civil  authority,  to  enable  them  to  do  what  he  could 
have  done  without,  was  as  meaningless  as  it  was 
unnecessary. 

Even  amid  the  destitution  and  suffering  of  Valley 
Forge,  it  does  not  appear  to  have  occurred  to  Wash- 
ington, that  his  military  command  gave  him  the  right  of 
military  control  over  the  citizen. 

I  have  in  my  hand  a  little  book,  published  by  an 
adjutant  of  the  Revolution,  containing  the  orders  of 
Washington  during  the  years  1778,  1780,  1781  and  1782. 
There  are  but  four  that  relate  to  the  military  trial  of 
civilians  ;  and  especial  pains  appear  to  have  been  taken 
to  make  known,  that  even  these  were  authorized  by 
express  resolution  of  Congress.     Thus  it  is  stated,  in  a 


58 


note,   that    the    trials    were   had   under   the    following 
authority  : 

"  Wednesday,  October  8th,  1777. 

"  A  motion  was  made,  to  prevent  an  intercourse 
between  the  towns  in  the  possession  of  the  enemy  and 
the  inhabitants  of  the  country. 

"  Ordered,  That  it  be  referred  to  a  committee  of 
three. 

"  The  members  chosen  ;  Mr.  R.  H.  Lee,  Mr.  J.  Adams, 
and  Mr,  Chase, 

''  Four  o'clock,  P.  M. 

"  The  committee  to  who-m  was  referred  the  motion 
for  preventing  an  intercourse  between  the  towns  in 
the  possession  oi  the  enemy  and  the  inhabitants  of  the 
country,  brought  in  a  resolution  for  that  purpose,  which 
was  agreed  to  as  follows  : 

"  Whereas,  it  is  of  essential  consequence  to  the  general 
welfare  that  the  most  effectual  measures  should  be 
forthwith  pursued  for  cutting  off  all  communications 
of  supplies,  or  intelligence,  to  the  enemy's  army  now 
in  and  near  the  City  of  Philadelphia ;  and  whereas,  it 
has  been  found,  by  the  experience  of  all  States,  that,  in 
times  of  invasion,  the  process  of  the  municipal  law  is 
too  feeble  and  dilatory  to  bring  to  a  condign  and 
exemplary  punishment  persons  guiltj^  of  such  traitorous 
practices  : 

"  Resolved,  That  any  person,  being  an  inhabitant  of 
any  of  these  States,  who  shall  act  as  a  guide  or  pilot 
by  land  or  water  for  the  enemy,  or  shall  give  or  send 
intelligence  to  them,  or  in  any  manner  furnish  them 
with  supplies  of  provisions,  money,  clothing,  arms, 
forage,  fuel,  or  any  kind  of  stores,  be  considered  and 
treated  as  an  enemy  and  traitor  to  these  United  States ; 
and  that  General  Washington  be  empowered  to  order 
such  persons,  taken  within  thirty  miles  of  any  city, 
town,  or  place  in  the  State  of  Pennsylvania,  Jersey, 
or  Delaware,  which  is,  or  may  be,  in  the  possession 
of  any  of  the  enemy's  forces,  to  be  tried  by  a  court 
martial,  and  such  court  martial  are  hereby  authorized 
to   sentence    any   such   persons    convicted  before   them 


59 


of  any  of  the  offences  aforesaid,  to  suffer  deatli  or  such 
other  punishment  as  to  them  shall  seem  meet. 

"This  resolve  to  remain  in  force  until  the  first  day 
of  January  next,  unlesss  sooner  revoked  by  Congress." 

These  precedents  are  evidence  of  the  highest  charac- 
ter to  show  that,  though  the  Congress  of  the  Eevolution 
in  this  instance,  gave  power  to  try  by  court  martial  citi- 
zens who  were  found  prowling  about  the  armies,  and 
giving  intelligence  or  supplies  to  the  enemy,  yet  that  the 
commander  in  chief  had  not  this  power  without  the  special 
and  express  authority  of  Congress ;  Avhich  authority,  it 
may  be  observed,  was  given  withal  in  terms  so  guarded, 
that  it  w^as  limited  in  its  operation  to  less  than  three 
months. 

The  first  constitutions  of  the  States  were  framed  with 
the  same  jealous  care.  By  the  Constitution  of  New 
Hampshire,  it  was  declared  that  "  in  all  cases,  and  at  all 
times,  the  military  ought  to  be  under  strict  subordination 
to  and  governed  by  the  civil  power  ;"  by  the  Constitution 
of  Massachusetts  of  1780,  that  "no  person  caa  in  any 
case  be  subjected  to  law  martial,  or  to  any  penalties  or 
pains,  by  virtue  of  that  law,  exeept  those  employed  in 
the  army  or  navy,  and  except  the  militia  in  actual  service, 
but  by  the  authority  of  the  legislature  ;"  by  the  Constitu- 
tion of  Pennsylvania  of  1776,  "  that  the  military  should 
be  kept  under  strict  subordination  to,  and  governed  by 
the  civil  power ;"  by  the  Constitution  of  Delaware  of 
1776,  "that  in  all  cases,  and  at  all  times,  the  military 
ought  to  be  under  strict  subordination  to,  and  governed 
by  the  civil  power  ;"  by  that  of  Maryland  of  1776,  "  that 
in  all  cases,  and  at  all  times,  the  military  ought  to  be 
under  strict  subordination  to,  and  control  of  the  civil 
power ;"  by  that  of  North  Carolina,  1776,  "  that  the  mili- 
tary should  be  kept  under  strict  subordination  to,  and 
governed  by  the  civil  power  ;"  by  that  of  South  Carolina, 
1778,  "  that  the  military  be  subordinate  to  the  civil  power 
of  the  State ;"  and  by  that  of  Georgia,  1777,  that  "  the 
principles  of  the  Habeas  Corpus  Act  shall  be  part  of  this 
Constitution  ;  and  freedom  of  the  press,  and  trial  by  jury% 
to  remain  inviolate  forever." 


60 


What  was  meant  by  these  declarations  of  the  Bills  of 
Rights  promulgated  in  that  revolutionary  period?  Was 
it  meant  that  the  military  must  be  subordinate  in  time  of 
peace,  but  paramount  in  time  of  war?  Were  our  fathers 
guarding  against  abuse,  when  there  was  no  danger  uf  it, 
or  against  it  where  there  was  danger ;  when  the  military 
w^ero  weak,  or  when  they  were  strong  ;  when  the  country 
had  less  need  of  their  services,  or  when  it  had  greater  ? 

The  federal  constitution  was  afterwards  formed,  with  the 
provisions  and  guarantees  which  have  been  already  con- 
sidered, and  as  if  to  make  more  sure,  that  these  were  in- 
tended for  war  as  well  as  peace,  the  letter  with  which 
Washington  communicated  that  instrument  to  the  con- 
gress of  the  confederation,  began  as  follows  : 

"  We  have  now  the  honor  to  submit  to  the  con- 
sideration of  the  United  States  in  Congress  assembled, 
that  Constitution  which  has  appeared  to  us  the  most 
advisable. 

"  The  friends  of  our  country  have  long  seen  and  de- 
sired that  the  pozver  of  maldng  tvar,  peace,  and  treaties, 
that  of  levying  money  and  regulating  cemmerce,  and  the 
correspondent  executive  and  judicial  authorities,  should  be 
fully  and  effectually  vested  in  the  General  Government  of 
the  Union." 

When  this  Constitution  came  before  the  people  for 
ratification,  its  friends,  as  we  know,  exerted  themselves 
to  refute  the  objections  made  against  it.  The  federal 
executive  was,  es2:)ecially,  an  object  of  attack.  In  the 
sixty-ninth  number  of  the  Federalist,  is  an  elaborate 
examination  of  his  powers,  as  compared  with  those  of 
the  King  of  Great  Britain,  on  the  one  hand,  and  the 
Governor  of  New  York  on  the  other :  in  the  course  of 
Avhich  it  is  said  : 

"  The  President  is  to  be  commander  in  chief  of 
the  army  and  navy  of  the  United  States.  In  this 
respect,  his  authority  would  be  nominally  the  same 
as  the  King  of  Great  Britain  ;  but,  in  practice,  much 
inferior  to  it.  It  Avould  amount  to  nothing  more  than 
the  supreme  command  and  direction  of  the  military  and 
naval  forces,  as  first  general  and  admiral  of  the    Con- 


Gl 


federacj ;  while  that  of  the  British  king  extends  to  the 
declaring  of  war,  and  to  the  ramiig  and  eqnipplng  of 
fleets  and  armies  ;  all  which,  by  the  Constitution  under 
consideration,  would  appertain  to  the  legislature'' 

Even  these  assurances  were  not  enough ;  and  though 
the  Constitution  was  ratified,  the  amendments,  which 
had  been  already  discussed,  were  immediately  proposed, 
and  adopted. 

Two  insurrections  occurred  ;  one,  Shay's  rebellion, 
shortly  before,  and  the  other  the  Whiskey  insurrection, 
shortly  after  the  adoption  of  the  Constitution.  Both 
were  suppressed  by  the  military  ;  but,  on  both  occasions, 
the  greatest  care  was  exhibited  to  hold  the  military 
always  in  subordination  to  the  civil  power. 

Burr's  conspiracy  happened  in  1805.  On  that  occa- 
sion, Mr.  Jefferson  sought  from  Congress  authority  to 
suspend  the  privilege  of  the  writ  of  habeas  corpus.  But 
though  the  Senate  passed  the  bill,  as  he  desired,  the 
House  of  Representatives  rejected  it  with  disdain. 

The  embargo  gave  rise  to  some  questions,  which,  though 
not  military,  have  a  bearing  on  the  present  subject.  One 
of  them  was  examined  and  decided  in  the  case  of  Brown 
against  the  United  States,  8  Cranch,  126.  In  that  case, 
the  question  was  whether  enemies'  property,  found  here 
on  land  upon  the  breaking  out  of  war,  could  be  con- 
demned without  a  legislative  act  ?  Mr.  Justice  Stoey,  from 
whose  judgment  the  appeal  was  taken,  thought  that  and 
President,  as  an  incident  of  his  office,  and  especially  by 
virtue  of  the  Act  of  Congress  declaring  war,  had  authorit}^ 
to  employ  all  the  usual  means  acknowledged  in  war  to 
carry  it  into  effect;  among  which  was  condemnation  of 
enemies'  property.  But  this  Court  reversed  the  judg- 
ment. Chief  Justice  Marshall  giving  the  opinion  ;  in  the 
course  of  which  he  said  : 

"That  the  declaration  of  war  has  only  the  effect  of 
placing  the  two  nations  in  a  state  of  hostility,  of  produc- 
ing a  state  of  war,  of  giving  those  rights  which  war  con- 
fers ;  but  not  of  operating,  by  its  own  force,  any  of  those 
results,  such  as  a  transfer  of  property,  which  are  usually 
produced  by  ulterior  measures  of  government,  is  fairly 


62 


deducible  by  the  enumeration  of  powers  which  accom- 
pany that  of  declaring  war.  *  Congress  shall  have  power ' 
*  to  declare  war,  grant  letters  of  marque  and  reprisal,  and 
make  rules  concerning  captures  on  land  and  water  ' 

"It  would  be  restraining  this  clause  within  narrower 
limits  than  the  words  themselves  import,  to  say  that  the 
power  to  make  rules  concerning  captures  on  land  and 
water  is  to  be  confined  to  captures  which  are  extra-territo- 
rial. If  it  extends  to  rules  respecting  enemies'  property 
found  within  the  territory,  then  we  perceive  an  express 
grant  to  Congress  of  the  power  in  question,  as  an  inde- 
pendent, substantive  power  not  included  in  that  of  de- 
claring war, 

^'  The  Acts  of  Congress  furnish  many  instances  of  an 
opinion  that  the  declaration  of  war  does  not  of  itself 
authorize  proceedings  against  the  persons  or  property  of 
the  enemy  found  at  the  time  within  the  territory. 

"  War  gives  an  equ  1  right  over  persons  and  property  ; 
and  if  its  declaration  is  not  considered  as  prescribing  a 
law  respecting  the  person  of  an  enemy  found  in  our 
country,  neither  dous  it  prescribe  a  law  for  his  property. 
The  act  concerning  alien  enemies,  which  confers  on  the 
President  vary  great  discretionary  powers  respecting 
their  persons,  affords  a  strong  implication  that  he  did 
not  possess  those  powers  by  virtue  of  the  declaration  of 
w\ar." 

"  The  'act  for  the  safe  keeping  and  accommodation  of 
prisoners  of  war,'  is  of  the  same  character.'  " 

I  now^  come  to  the  war  of  1812.  A  proposition  was 
then  made  in  Congress  to  subject  to  martial  trial  Ameri- 
can citizens  found  acting  as  spies.  This  brought  a 
speech  from  Mr.  Webster,  part  of  which  I  beg  leave  to 
read. 

It  will  be  found  in  the  annals  of  Congress,  1813,  1811, 
Yol.  1,  p.  885. 

He  said  :  "  If  the  proposition  were  to  considei- 
whether  it  was  necessary  to  provide  additional  legal  pun- 
ishments for  any  description  of  offense,  he  should  see 
no  objection  to  the  reference  of  the  subject  to  a  com- 
mittee.    If  illegal  intercourse  existed  with  tlie  enemy,  he 


63 


sliould  go  iis  far  as  any  one  in  applying  constitutional 
remedies  to  that  evil.  But  this  resolution  proposes,  in 
effect,  to  consider  whether  it  is  not  expedient  to  try  accu- 
sations for  treason  before  military  instead  of  civil  tribu- 
nals. However  glaring  may  be  the  idea,  yet  such  is  in 
truth  the  real  nature  of  the  proposition  ;  it  is  to  change  the 
forum  for  the  trial  of  treason.  The  mover  of  the  resolution 
and  the  gentleman  from  the  State  of  Georgia  (Mr.  Troup) 
have  not  left  any  doubt  on  this  subject.  They  have  al- 
luded to  cases  which  they  suppose  the  resolutions  to 
embrace,  and  for  which  they  deem  it  necessary  to  pro- 
vide military  punishment.  But  Avhat  is  the  nature  of 
those  cases?  Are  they  not  cases  of  treason?  It  is  said 
information  has  been  communicated  to  the  enemy,  very 
material  to  him,  respecting  the  operations  of  our  own 
forces,  by  citizens  of  the  United  States.  Signals  are  said 
to  have  been  made  for  this  purpose  on  the  St.  Lawrence 
and  elsewhere.  Do  gentlemen  suppose  that  the  act  of 
communicating  to  the  enemy  important  intelligence, 
whether  by  signals  or  otherwise,  whereby  he  is  better 
able  to  defend  himself  or  attack  his  adversarj'^  is  not 
treason?  Is  not  this  giving  aid  and  comfort  to  the 
enemy  ?  May  it  not  be  in  many  cases  the  most  import- 
ant service  which  can  be  rendered  him  ?  Certainly,  sir, 
all  such  offences  as  gentlemen  have  mentioned  are  pro- 
vided for  by  law,  and  adequate  penalties  annexed  to  the 
commission.  The  simple  question  before  us  is,  whether 
we  will  consider  the  propriety  of  taking  tke  power  of 
trying  these  offenses  from  the  courts  of  law,  where  the 
Constitution  has  placed  it,  and  confer  it  on  the  military. 
Sir,  the  proposition  strikes  me  as  monstrous.  It  cannot 
consent  to  entertain  the  consideration  of  it  even  for  a 
moment.  It  goes  to  destroy  the  plainest  constitutional 
provisions.  If  it  should  prevail  I  should  not  hesitate  to 
pronounce  it  a  most  enormous  stride  of  usurpation." 

In  Stacy's  case,  which  occurred  during  the  same 
war  with  Great  Britain,  a  writ  of  liaheaa  corpus  was 
issued  to  Commodore  Chauncey  and  General  Lewis, 
commanding  on  the  frontiers,  to  bring  u])  the  body 
of  Stacv.     General  Lewis  stated  "  that  he  believed  the 


64 


said  Stacy  had  been  guilt}^  of  treasonable  practices, 
in  carrying  provisions  and  giving  information  to  the 
enemy,  and  that  he  believed  a  court  martial  was  the 
proper  tribunal  to  try  the  said  Stacy,  though  he  was  a 
citizen."  Observe,  now,  what  was  the  language  of  the 
Court,  as  delivered  by  Kent.  "  This  is  a  case  which 
concerns  the  personal  liberty  of  the  citizen."  ^'  -  - 
"  The  pretended  charge  of  treason  (for,  upon  the  facts 
before  us,  we  must  consider  it  a  pretext),  without  being- 
founded  upon  oath,  and  without  any  specification  of  the 
matters  of  w^hich  it  might  consist,  and  tvlthout  any  color 
of  authority  in  any  military  tribunal,  to  try  a  citizen  for 
that  crime,  is  only  aggravation  of  the  oppression  of 
the   imprisonment!"      ^         "^  ■•'      "If   ever   a   case 

called  for  the  most  prompt  interposition  of  the  Court 
to  enforce  obedience  to  its  process,  this  is  one.  A 
military  commander  is  here  assuming  crimincd  jurisdiction 
over  a  private  citizen,  is  holding  him  in  the  closest 
confinement,  and  contemning  the  civil  authority  of  the 
State." 

Smith  agt.  Shaw,  also  in  the  Supreme  Court  of  New 
York  (12  Johns.,  257),  was  an  action  growing  out  of  the 
same  war,  and  brought  against  a  military  officer  for 
confining  the  plaintiff  on  charges  of  "exciting  insur- 
rection and  mutiny  among  the  good  citizens  of  the' 
United  States;"  "violating  his  parol  as  a  prisoner  of 
the  enemy,  and  engaging  in  an  illicit  trade,  to  furnish 
the  enemy  with  necessaries  from  the  United  States ;" 
and  "being  an  enemy's  spy,  in  time  of  war,  between 
Great  Britain  and  the  United  States."  It  was  argued 
for  the  defendant  that  the  power  to  arrest  in  such  a  case 
was  "essential  to  the  public  safety  — '  Salus  populi 
supremo  lex.'  This  is  not  a  doctrine  dangerous  to 
liberty,  or  to  the  rights  of  citizens,  qualified  as  it  is  with 
the  requisites  that  there  must  be  a  case  of  necessity,  a 
probable  cause  for  the  arrest — Silent  leges  leges  inter 
arma.''  For  the  plaintiff,  it  was  replied  :  "  It  cannot, 
surely,  be  pretended,  that  the  plaintiff,  a  naturalized 
citizen,  could  be  treated  as  a  spy.  The  plaintiff  is 
entitled  to  all  the  benefits  of  our  Constitution  and  Bill  of 


(j5 


Bights.  It  is  one  of  tlie  very  grievanc.  s  enumerated  in 
the  Declaration  of  Independence,  that  the  king  had 
affected  to  render  the  military  independent  of  aad  supe- 
rior to  the  civil  power.  It  is  matter  of  astonishment, 
that  in  less  than  forty  years,  and  in  the  life  of  the  men 
who  framed  that  instrument,  it  should  be  argued  in  a 
court  of  justice,  that  this  military  power  can  be  exer- 
cised in  this  country ;  in  England  it  would  not  even 
be  debated."  Thompson,  Chief  Justice,  delivered  the 
opinion  of  the  Court,  and  among  other  things  said : 
"None  of  the  offences  charged  against  Shaw  are  cogni- 
zable by  a  court  martial  except  that  which  related  to  his 
being  a  spy  ;  and  if  he  was  an  American  citizen,  he  could 
not  be  charged  with  such  an  offence.  He  might  be 
amenable  to  the  civil  authority  for  treason,  but  could  not 
be  punished  under  martial  law  as  a  spy."  And  again  : 
"  The  conduct  of  the  defendant  in  this  case  does  not 
appear  to  have  been  harsh  and  oppressive.  But  it  is  the 
])rinciple  involved  in  it,  which  renders  the  question  im- 
portant. If  the  defendant  was  justifiable  in  doing  what 
he  did,  every  citizen  of  the  United  States  would  in  time 
of  war  be  equally  exposed  to  a  like  exercise  of  military 
power  and  authority." 

Lamb's  case,  1  N.  C.  Laiv  BeposUory,  related  to  the 
extension  of  the  rules  and  articles  of  war  to  the  militia 
during  the  same  contest.  Judge  Bay,  giving  the  opinion 
of  the  Court,  said  :  "  The  constitutionality  of  martial  law 
has  been  called  in  question.  If  by  martial  law  is  to  be 
understood  that  dreadful  system,  the  law  of  arms,  which 
in  former  times  was  exercised  by  the  -King  of  England 
and  his  lieutenants,  when  his  word  was  the  law  and  his 
will  the  power  by  which  it  was  exercised,  I  have  no  hes- 
itation in  saying,  tljat  such  a  monster  could  not  exist  in 
the  land  of  liberty  and  freedom  ^  ^  ^-  ^ 

But  if  by  this  military  code  is  meant  to  be  understood 
the  rules  and  regulations  for  the  government  of  our  men 
in  arms,  when  marshaled  in  defence  of  our  country's 
rights  and  honor,  then  I  am  bound  to  say  there  is  noth- 
ing unconstitutional  in  such  a  system." 

In  Johnson  agt.  Duncan,  3  Martin's  Lou.  Rep.,  0.  S., 
9 


6Q 


520,  a  question  arose  respecting  the  validity  of  martial 
rule,  as  established  by  General  Jackson,  at  New  Orleans, 
in  December  1814.  Martin,  Justice,  delivering  the  opin- 
ion of  the  Court,  made  at  the  outset,  the  following  observa- 
tion :  "  At  the  close  of  the  argument  on  Monday  last,  we 
thought  it  our  duty,  lest  the  smallest  delay  should  coun- 
tenance the  idea  that  this  Court  entertain  any  doubt  on 
the  first  ground,  instantly  to  declare  viva  voce  (although 
the  practice  is  to  deliver  our  opinioiis  in  writing)  that  the 
exercise  of  our  authority  vested  by  the  law  in  this  Court 
could  not  be  suspended  by  any  man, 

"  In  any  other  State  but  this,  in  the  population  of  which 
are  many  individuals,  who,  not  being  perfectly  acquainted 
with  their  rights,  may  easily  be  imposed  on,  it  could  not 
be  expected  that  the  judges  of  this  Court  should,  in  com- 
plying with  the  constitutional  injunction,  in  all  cases  to 
adduce  the  reasons  on  luhich  their  judgment  is  founded,  take 
up  much  time  to  show  that  this  Court  is  bound  utterly  to 
disregard  what  is  thus  called  martial  laiv  ;  if  anything  be 
meant  thereby  but  the  strict  enforcing  of  the  rules  and 
articles  for  the  government  of  the  army  of  the  United 
States  established  by  Congress,  or  any  act  of  that  body 
relating  to  military  matters  on  all  individuals  belonging 
to  the  army  or  militia  in  the  service  of  the  United  States. 
Yet  we  are  told  that  by  this  proclamation  of  martial 
law,  the  ofiicer  who  issued  it  has  conferred  on  himself, 
over  all  his  fellow  citizens  (within  the  space  which  he  has 
described;,  a  supreme  and  unlimited  power,  which  being 
incompatible  with  the  exercise  of  the  functions  of  civil 
magistrates,  necessarily  suspends  them."  The  whole 
opinion  is  worthy  of  the  most  careful  consideration. 

Perhaps  I  ought  not  here  to  omit  some  mention  of  the 
subsequent  resolution  of  Congress  to  refund  the  fine  im- 
posed upon  General  Jackson.  This  piece  of  history  has 
been  perverted  into  the  sanction  and  support  of  martial 
rule.  In  reality,  it  gives  no  such  sanction  or  support. 
The  refunding  of  the  money  was  only  a  testimony  to  the 
good  intentions  of  the  General,  but  not  in  the  least  evi- 
dence of  the  legality  of  his  action,  or  an  argument  for  it. 
At  the  utmost,  it  fell  far  short  of  an   act  of  indemnity, 


67 


such  as  the  British  Parliament  often  gives  to  an  act, 
illegal  in  itself,  but  done  in  anticipation  of  its  subsequent 
ratification  by  an  omnipotent  legislature.  The  legal 
invalidity  of  General  Jackson's  action  in  that  case  bear- 
ing no  analogy  to  the  circumstances  of  the  j^resent,  can- 
not be  better  demonstrated  than  by  the  judgment  of  the 
Supreme  Court  of  Louisiana,  in  the  case  of  Johnson 
agt.  Duncan,  which  I  have  just  quoted. 

In  the  year  1836  there  arose  a  debate  in  the  House  of 
Representatives,  in  which  the  war  power  of  the  Federal 
Government  was  discussed  by  John  Quincy  Adams,  and 
his  speeches  have  been  referred  to  now  and  then,  as 
giving  some  countenance  to  the  notion,  that  it  conferred 
very  large  discretionary-  authority  upon  the  Executive.  A 
slight  examination,  however,  will  show  that  this  is  a  mis- 
take. He  was  referring  to  the  war  power  of  Congress 
ratlier  than  of  the  President. 

Six  years  later  came  the  Ehode  Island  troubles.  There 
was  a  contest  between  two  rival  governments;  one  under 
a  colonial  charter,  and  the  other  under  a  convention  as- 
sembled in  opposition  to  it.  In  the  course  of  the  contest, 
the  legislature  of  the  charter  government  passed  "  An  Act 
establishing  martial  law  in  this  State."  Borden  was  a 
militiaman  who,  by  the  order  of  his  superior  officer,  en- 
tered Luther's  house  to  arrest  him.  Luther,  thereupon, 
sued  Borden  in  the  Circuit  Court  of  the  United  States. 
The  case  came  here,  and  the  main  question  was,  which 
of  the  two  governments  was  the  legal  one.  It  was  held 
that  the  charter  government  having  been  recognized  by 
the  other  departments  of  the  Federal  Government,  that 
recognition  was  conclusive  upon  this  Court.  The  justi- 
fication of  the  defendant  was  complete,  when  it  was  de- 
cided that  the  Government  under  which  he  acted  was  the 
lawful  one.  The  question,  whether  that  government  could 
place  the  State  under  martial  rule  did  not  probably 
arise;  and  if  it  had  arisen,  it  would  have  been  a  different 
question  from  that  which  arises  in  this  case.  The  charter 
of  Charles  II.  imposed  no  restraint  in  this  respect  upon 
the  Legislature  of  Rhode  Island.  That  legislature,  in 
its  own  sphere,  was  as  omnipotent  as  the  British  Parlia- 


08 


meiit.  There  could  arise  for  diseiissioii  in  that  case  no 
question  about  martial  rule  under  the  the  Federal  Gov- 
ernment. The  Courts  of  Rhode  Island  had  already  de- 
cided in  favor  of  the  charter  constitution,  and  of  the  act 
of  the  legislature ;  and  this  Court,  in  deciding  upon 
State  constitutions  and  State  laws,  follows,  as  everybody 
knows,  the  State  Courts.  The  mention  of  the  question 
of  martial  rule,  however,  dreAv  the  following  observations 
from  the  Chief  Justice,  which  are  very  significant  in  their 
bearing  upon  the  present  case  : 

"  The  remaining  question  is,  whether  the  defendants, 
acting  under  military  orders,  issued  under  the  authority 
of  the  Government,  were  justified  in  breaking  and  enter- 
ing the  plaintift"s  house.  In  relation  to  the  act  of  the 
legislature  declaring  martial  law,  it  is  not  necessary  in  the 
cause  he/ore  us  to  irKjiiire  to  lohat  extent,  or  under  what  cir- 
c^onstances  that  power  maij  he  exercised  hy  a  State. 

"  Unquestionably  a  military  government,  established 
as  the  permanent  government  of  the  State,  would  not  be 
a  republican  government,  and  it  would  be  the  duty  of 
Congress  to  overthrow  it.  But  the  law  of  Rhode  Island 
evidently  contemplated  no  such  government.  It  was  in- 
tended merely  for  the  crisis,  and  to  meet  the  peril  in 
which  the  existing  government  was  placed  by  the  armed 
resistance  to  its  authority.  It  was  so  understood  and 
construed  by  the  State  authorities. 

"  And  unquestionably  a  State  may  use  its  military 
power  to  put  down  an  armed  insurrection,  too  strong 
to  be  controlled  by  the  civil  aiithority.  The  power  is  es- 
sential to  the  existence  of  every  government,  essential 
to  the  preservation  of  order  and  free  institutions,  and  is 
as  necessary  to  the  States  of  this  Union  as  to  any  other 
government.  The  State  itself  must  determine  what 
degree  of  force  the  crisis  demands.  And  if  the  Govern- 
ment of  Rhode  Island,  deemed  the  armed  opposition  so  formi- 
dable, and  so  ramijied  throngh  the  State,  as  to  require  the 
use  of  its  military  force,  and,  the  declaration  of  marticd  laio, 
we  see  no  ground  upon  irhich  this  Court  can  question  its 
authority. 

"  It  was   a  state   of  war  ;    and  the    established  gov- 


t  u 


onimeiit  resorted  to  tlio  liglits  ami  usages  of  war  to 
maintain  itself,  and  to  overcome  the  unlawful  opposition. 
And  in  that  state  of  things,  the  officers  engaged  in  its 
militaiy  service  might  lawfully  arrest  any  one,  who, 
from  the  information  before  them,  they  had  reasonable 
grounds  to  believe,  was  engaged  in  the  insurrection  ;  and 
might  order  a  house  to  be  forcibly  entered  and  searched 
when  there  were  reasonable  grounds  for  supposing  he 
might  be  there  concealed.  Without  the  power  to  do 
this,  martial  law  and  the  military  array  of  the  govern- 
ment would  be  mere  parade,  and  rather  encourage 
attack  than  repel  it.  No  more  force,  however,  can  be 
used  than  is  necessar}^  to  accomplish  the  object.  And 
if  the  power  is  exercised  for  the  purposes  of  oppression, 
or  any  injury  wilfully  done  to  person  or  property,  the 
party  by  whom  or  by  whose  order  it  is  committed  would 
undoubtedly  be  answerable. 

"  J  Ve  fori  car  to  reinavl-  uj  on  the  cases  nferred  to  in  the 
iinjuinad  hi  relation  to  the  eoruritissions  ancieidly  issued  by 
KinijS  of  Ei,[jJand,  to  Commissiohers,  to  proceed  agcnnst 
certain  descriptions  of  'persons  in.  certain  places  by  the  laio 
martial. 

"  These  conimissioris  icere  ioSLcd  by  the  hiity  cd  his 
pleasure,  icithoid  the  concurrence  or  authority  (f  Parliament, 
andtccic  often  abused  for  the  most  despotic  and  oppressive 
purposes.  They  were  lised  before  the  regal poicer  (f  Englaral 
was  icell  defi^id,  ahd-  it  ere  finally  cdjolished  and  prohibited 
ly  tie  petition  of  rigid  in  tie  reign  of  C],arles  the  First. 
But  they  bear  no  analogy,  in  any  respect,  to  the  de- 
claration of  martial  law  by  the  legislative  authority  of 
the  State,  made  for  the  purposes  of  self-defence,  when 
assailed  by  an  armed  force  ;  and  the  cases  and  com- 
mentaries concerning  these  commissions,  cannot,  there- 
fore, influence  the  construction  of  the  Bhode  Island  law, 
nor  furnish  any  test  of  the  lawfulness  of  the  authority 
exercised  by  the  government." 

Four  years  later,  came  the  Mexican  war  ;  in  the 
course  of  which  General  Scott,  having  to  occupy 
certain  conquered  places,  and  therefore  to  keep  order 
therein,  instituted  a  body  of  regulations,  in   which  he 


70 


mentioned  militarj  commissions  as  one  of  tlie  instru- 
ments of  bis  government.  This  was,  however,  wholly 
the  exercise  of  a  belligerent  right  over  a  territory 
eonqured  ;  like  the  exercise  of  it  in  California,  on  its 
conquest.  In  Cross  a<jt.  Harrison  (18  How,,  164),  it 
was  held  that  the  establishment  of  civil  government  in 
California,  was  the  lawful  exercise  of  a  belligerent  right 
over  a  conquered  country. 

Harmony's  case  (13  How.,  116),  grew  out  of  this 
Mexican  war.  Mitchell,  being  an  officer  of  the  army, 
was  sued  by  Harmony  for  seizing  his  property  in  the 
Mexican  State  of  Chihuahua.  Mitchell  insisted,  among 
other  things,  that  the  seizure  was  an  act  of  military 
necessity.  This  question  was  submitted  to  the  jury, 
and  a  point  was  made  whether  the  law  on  that  subject 
had  been  correctly  laid  dov/n,  "  We  are  clearly  of 
opinion,"  say  the  Court,  speaking  by  Chief  Justice 
Taney,  "  that,  in  all  of  these  cases,  the  danger  must 
be  immediate  and  impending  ;  or  the  necessity  urgent 
for  the  public  service,  such  as  will  not  admit  of  delay, 
and  when  the  action  of  the  civil  authority  would  be  too 
late,  in  providing  the  means  which  the  occasion  calls  for. 
It  is  impossible  to  define  the  particular  circumstances 
of  danger,  or  necessity,  in  which  this  power  may  be 
lawfully  exercised.  Every  case  must  depend  on  its  own 
circumstances.  It  is  the  emergency  that  gives  the 
right ;  and  the  emergency  must  be  shoivu  to  exist,  before 
the  taking  can  be  justified." 

In  th-e  year  1855,  hostilities  with  the  Indians  broke 
out  in  Oregon,  then  a  territory,  and  the  Governor 
thought  it  proper  to  declare  martial  rule.  His  conduct  in 
this  respect  became  the  subject  of  review  at  Washington, 
wh^r«  it  was  disapproved.  *  An  opinion  was  then  given 
by  Mr.  Cushing,  Attorney  General,  containing  some 
novel  views  regarding  the  subject  of  martial  rule,  and 
discountenancing,  as  I  think,  its  assumption  by  the  ex- 
ecutive department. 

This  summary  brings  us  to  the  period  of  our  civil  war. 
How  far  Congress  has  sanctioned  or  r,C|uiesced  in  the 
assumption  hj  the  Executive  of  military  control  over 


71 


civilians,  wo  Lave  already  seen  to  some  extent.  It  re- 
mains only  to  take  notice  of  a  debate,  which  occurred  in 
the  House  of  Representatives  in  the  closing  hours  of  the 
last  Congress,  a  year  ago,  on  an  amendment  to  one  of  the 
appropriation  bills  proposed  by  Henry  Winter  Davis,  to 
the  effect,  that  when  the  civil  courts  w^ere  open,  no  person 
should  be  subject  to  mihtary  trial  but  those  in  the  mili- 
tary or  naval  service,  or  rebel  enemies  charged  with  be- 
ing spies.  The  amendment  was  adopted  by  the  House  ; 
but  it  was  stated  in  the  debate,  that  though  a  majority  of 
the  Senate  concurred  in  the  principle  involved,  they  re- 
fused to  pass  it  as  part  of  the  appropriation  bill.  The 
debate  is  remarkable  not  only  for  its  condemnation  of 
military  trials  for  civilians,  but  for  it?  exposure  of  the 
abuses  which  had  sprung  up.  We  have  been  told  here 
that  the  power  which  we  are  opposing  has  never  been 
abused ;  that  none  have  ever  been  convicted  before  a  court 
martial  or  military  commission,  except  the  guilty.  In 
pro])osing  this  amendment,  Mr.  Davis  said  : 

"  I  do  not  desire  at  this  period  of  the  session  to  detain 
the  House  even  by  an  argument  in  favor  of  the  amend- 
ment I  have  submitted.  I  desire  to  state  merely  what  it 
contemplates,  and  to  beg  the  House  to  give  a  direct  vote 
upon  it.  It  is  a  measure  which  touches  the  very  founda- 
tion of  republican  government — the  liberty  of  the  citizen 
— nothing  more,  nothing  less. 

"I  do  not  think  it  is  exclusively,  perhaps  not  chiefly, 
the  fault  of  those  in  authority,  that  military  commissions 
have  tried,  contrary  to  the  Constitution  and  laws  of  the 
United  States,  many  of  its  citizens.  It  began  first  in  the 
rebel  States,  then  spread  to  the  border  States,  the  thea- 
atre  of  armed  conflicts,  then  invaded  Pennsylvania,  In- 
diana, and  New  York,  amid  the  general  acclaim  of  the 
people  ;  and  now  that  it  reaches  as  far  north  as  Boston, 
we  hear  the  first  murmur  of  i,ts  advocates  or  instigators. 
What  that  amendment  contemplates  is,  not  to  cast  impu- 
tation upon  any  administration  or  any  officer,  but  re- 
cognizing the  error  which  the  people  as  well  as  the  Gov- 
ernment have  in  common  committed  against  the  founda- 
tion of  their  own  safety,  now,  before  the  very  idea  of  the 
supremacy  of  the  law  has  faded  from  the  country,. to 
restore  it  to  its  power. 

"  This  amendment  is  confined  rigidly  to  the  loyal 
States,  to  the  States  in   which  the  Courts  of  the  United 


States  are  open  ;  to  the  States  whose  governments  the 
United  States  guaranty  ;  so  that  it  does  not  strip  the 
Government  of  any  power,  legal  or  usurped,  which  it  has 
thought  necessarj^  in  its  eff)rts  to  suppress  the  rebellion. 
It  leaves  everybody  to  be  tried  by  court  martial  who  is 
actually  in  the  military  service  of  the  Government,  or 
who,  being  a  r3bel  enemy,  is  arrested  as  a  spy.  But  it 
annuls  everything  that  has  been  done  heretofore  under 
illegal  military  commissions ;  directs  all  persons  now  in 
illegal  confinement,  under  sentence  of  illegal  military 
commissions,  to  be  either  discharged  or  delivered  to  the 
civil  tribunals,  to  be  there  proceeded  against  according 
to  law.     There  the  amendment  stops. 

"  I  desire  to  make  an  imputation  on  no  one.  This 
amendment  is  proposed  for  the  benefit  of  every  party 
and  of  every  administration.  And  I  trust  that  the  House 
will  allow  it  to  be  incorporated  into  this  bill,  that  it  may 
become  the  acknowdedged,  as  it  is  now  the  supreme,  law 
of  this  land  and  the  right  of  the  citizen." 

Mr.  Dawes,  of  Massachusetts,  who  still  is  and  has  been 
for  many  j-ears  at  the  head  of  the  Committee  on  Elections, 
and  than  w^hom  there  is  not  a  more  loyal  and  true  man 
in  all  the  country,  said  : 

"  I  believe  that  during  the  time  I  have  served  in  Con- 
gress I  have,  to  the  extent  of  my  ability,  devoted  myself 
to  the  effort  to  ferret  out  and  punish  those  who  have 
been  engaojed  in  defrauding  the  gavernment.  During 
the  last  Congress  I  devoted,  I  think,  some  part  of  my 
strength,  I  know  I  did  a  great  deal  of  my  time,  to  that 
kind  of  work,  calling  down  upon  myself  the  curses  of 
those  wdio  had  been  engaged  as  contractors,  and  other- 
wise in  supplying  the  government.  In  carrying  out  wdiat 
I  W'as  endeavoring  to  do,  I,  in  co-operation  with  others, 
reported  to  the  House  a  bill  which  became  a  law,  making- 
contractors  with  the  government,  and  those  engaged  in 
supplying  it,  subject  to  trial  by  court  martial.  I  was 
aware  that  it  w^as  an  extreme  measure  ;  but  I  felt  at  that 
time  that  it  was  necessary  to  check  what  seemed  to  be  a 
growing  and  an  alarming  evil.  In  putting  into  the  hands 
of  the  officers  of  the  government  this  extreme  power,  I 
had  confidence  that  they  would  exercise  it  with  modera- 
tion and  reason.  But,  Mr.  Chairman,  I  am  sorry  to  say 
that  my  observation  of  the  administration  of  that  law,  of 
which  I  take  to  myself  some  part  of  the  responsibility, 
has  been  such  during  the  past  year  or  two  as  to  compel 
me  to  support  this  amendment.  Sir,  we  seem  to  have 
lost  sight  in  the  execution  of  that  law,  of  the  guaranties 


73 


of  the  Constitution.  We  seem  to  forget  that  civilians 
charged  with  offenses  have  any  right  to  trial  by  jury,  or  a 
knowledge  of  the  offenses  for  which  they  are  frequently 
incarcerated  in  prison. 

"  Sir,  we  seem  to  be  taking  very  little  note  of  the 
direction  in  which  we  are  drifting.  Day  before  yesterday 
I  voted  for  a  bill,  and  I  will  read  its  title.  It  seemed 
harmless  enough.  It  is  a  bill  '  to  provide  for  the  better 
organization  of  the  pay  department  of  the  navy.'  It  be- 
came a  law  so  far  as  votes  in  this  House  were  needed  for 
that  purpose.  There  was  nothing  in  its  title  to  attract 
attention.  But  to  my  astonishment,  on  turning  to  the 
last  section  I  found  a  provision  which  I  did  not  and 
could  not  suspect  from  anything  indicated  by  the  title, 
and  which  is  of  so  extraordinary  a  character  that  I  am 
glad  that  a  motion  has  been  entered  to  reconsider  the 
vote  by  which  it  passed  this  House  that  I  can  expose  its 
enormous  character.  I  now  call  the  attention  of  mem- 
bers to  this  section  to  show  how  unconcernedly  we  are 
drifting  along  in  this  current  without  seeming  to  be 
aware  of  it,  into  the  strangest  state  of  things  that  ever 
existed  under  a  free  government.  In  a  bill  with  the  title 
which  I  have  given,  it  is  enacted  in  the  third  and  last 
clause  that  every  one,  not  only  in  the  naval  service,  but 
every  servant  of  everybody  in  the  employ  of  the  Navy 
Department,  every  little  servant  who  goes  in.  and  out  of 
the  doors  of  the  Navy  Department,  every  -driver  of  a 
team  which  happens  to  be  loaded  with  supplies  for  the 
Navy  Department,  every  one,  and  every  one's  agent  or 
servant  who  happens  to  deal  with  the  Navy  Department, 
shall  be  subject  to  trial  by  court-martial  for  any  alleged 
offense  in  such  dealing.  Every  man  in  the  employ  of  the 
Navy  Department,  every  agent,  employee,  or  servant  con- 
nected with  that  department,  in  all  its  ramifications,  is 
subject  to  be  tried  by  court-martial.  And  the  punish- 
ment to  be  inflicted  by. that  court-martial,  without  trial 
by  jury  in  the  form  guarantied  by  the  Constitution,  is  to 
be  a  fine  not  exceeding  $10,000,  and  imprisonment  in  any 
penitentiary  of  the  United  States  not  exceeding  ten  years. 
I  understand  from  high  authority  in  the  Navy  Depart- 
ment, from  which  this  section  has  come,  that  courts- 
martial  are  not  organized  like  courts  of  law,  to  guard  the 
rights  of  the  accused  and  secure  justice,  but  are  organ- 
ized to  convict." 

"  I  have,  in  the  last  fortnight,  had  the  painful  duty 
devolved  upon  me  to  read  the  proceedings  of  a  court- 
martial  under  the  law,  which  I  reported  to  the  House 
some  two  years  ago.     It  is  one,  which,  I  venture  to  say, 

10  ^ 


74: 


lias  hardly  a  parallel  for  the  bitter  malignity,  which 
seems  to  run  through  the  whole  proceedings,  and  for 
wider  departure  from  old  and  established  rules  of  law, 
of  which  the  accused  were  the  victims,  and  by  which 
they  were  hunted, 'since  the  days  of  Jeffreys." 

Mr.  Schenck,  the  Chairman  of  the  Military  Committee, 
and  a  General  in  the  Union  army,  said  : 

"  We  again  here,  the  other  day,  passed  a  section  in  an 
appropriation  bill,  infringing  in  the  same  way  on  the  right 
of  the  citizen  to  be  tried  only  by  the  civil  courts,  and 
not  by  military  tribunals.  I  understand  that  it  was  done 
inadvertently ;  I  was  not  in  the  Hall  at  the  time ;  and  I 
should  cheerfully  vote  to  reconsider  in  order  to  get  rid  of 
the  section  referred  to." 

Mr.  Ganson,  a  member  from  New  York,  without  whose 
vote  and  efforts  the  Constitutional  Amendment  would 
hardly  have  passed  the  lower  House  of  Congress,  took 
similar  ground.  Mr.  Davis  said  in  a  subsequent  part  of 
the  debate  : 

"  But,  sir,  what  do  you  say  with  reference  to  trials  for 
things  that  are  not  crimes  under  any  law,  for  things  that 
are  not  defined  to  be  crimes,  civil  or  military?  "W'hat 
do  you  say  to  the  trial  of  a  loyal  citizen,  in  the  city  of 
Baltimore,  upon  the  charges  and  specifications  which  I 
hold  in  my  iTTinds,  for  forging  Jefi'erson  Davis's  currency? 
One  of  my  constituents  is  noiv  in  jail  under  these  sjiecificn- 
tions,  having  been  tried  and  condemned  by  a  military 
tribunal  for  attempting  to  break  down  the  rebel  currency ! 
I  can  state  no  other  fact  that  will  better  illustrate  the 
insolence  of  irresponsible  military  tribunals,  known  to  no 
law,  appointed  under  no  law,  restrained  by  no  law,  au- 
thorized by  nobod}',  bound  by  no  law  but  the  will  of  the 
men  who  sit  in  their  uniforms  to  try  the  rights  of  Ameri- 
can citizens,  according  to  the  law  of  the  sword."  And 
again  :  "The  public  safety  never  has  required  these  illegal 
and  summary  trials  ;  it  now  requires  that  they  cease. 
The  past,  men  are  ready  to  forget — the  American  people 
most  of  all ;  they  instigated  or  tolerated  the  usurpa- 
tions of  those  in  authority  :  but  they  now  have  felt  the 
sharpness  of  military  justice,  and  demand  of  their  rulers 
a  return  to  the  Constitution  and  laws.  If  heretofore 
they  have  violated  the  law  and  Constitution — I  do  not 
say  criminally,  I  do  not  say  with  intent  to  oppress,  I 
do  not  say,  even  knowing  it  to  be  criminal — it  was  the 
common  error ;  and  they  may  plead  the  error  of  the 
TieoT)le   which  misled  the  leaders  of   the  jjeople  at  the 


beginning  of  the  rebellion.  More  firmness,  more  knowl- 
edge, more  coolness  in  high  places,  might  perhaps  have 
arrested  the  popular  current,  and  silenced  the  popular 
tumult,  and  kept  the  torrent  within  the  bounds  of  law. 
It  was  not  found  in  places  of  authority  ;  all  bowed  before 
the  storm  ;  all  floated  with  the  current." 

This  brings  the  history  of  this  question  in  our  American 
annals  down  to  the  present  time.  Nothing  which  I  might 
say  could  add  to  the  impression  which  these  authorities 
and  this  history  must  leave  on  the  mind  of  every  candid 
man  ;  that,  whatever  may  be  the  law  in  other  countries, 
in  this,  a  military  commission,  such  as  we  are  considering 
in  the  present  case,  is  a  gross  and  monstrous  usurpation. 
It  is  manifest,  that  the  toleration  of  it  for  a  moment  is 
something  new,  and  it  is  marvellous  that  it  should  ever 
have  received  the  smallest  countenance.  That  it  vshould 
have  been  so,  is  owing  to  the  new  and  extraordinary  cir- 
cumstances in  which  we  were  suddenly  placed  ;  to  our 
previous  unacquaintance  with  large  armies ;  to  our  inex- 
perience of  the  evils  of  military  rule ;  and,  above  all,  to 
the  absorption  of  almost  every  man's  thought,  will  and 
action  in  the  one  great  vital  task  of  sustaining  and 
augmenting  the  physical  forces  of  the  country  for  its 
struggle  with  rebellion. 

I  wdll,  however,  now  proceed  a  step  further,  and  show 
that  in  England,  from  which  country  we  have  received  all 
her  legal  guarantees,  and  have  added  to  them,  as  we 
think,  many  more;  in  constitutional  England  the  his- 
torical argument  would  be  also  conclusive. 

The  constitutional  history  of  England  is  the  history  of 
a  struggle  on  the  part  of  the  crown  to  obtain  or  to  exer- 
cise a  similar  power  in  the  country  of  our  forefathers. 
The  power  claimed  by  the  king  was  as  much  in  virtue 
of  his  royal  prerogative  and  of  his  feudal  relations  to  his 
people  as  lord  paramount,  as  of  his  title  as  com- 
mander of  the  forces.  How  that  struggle  w\as  carried  on 
from  the  days  of  Runnymede,  down ;  with  what  various 
fortune,  what  alternations  of  success  and  defeat,  till  its 
final  settlement,  it  were  needless  to  recount  in  this  pres- 
ence. 

More  than  five  hundred  j^ears  ago,  in  the  reign  of  Ed- 


76 


ward  the  Second,  during  a  violent  civil  commotion,  mucli 
more  like  war  than  anything  that  has  ever  been  seen  in 
the  States  of  Indiana  and  Illinois,  the  Earl  of  Lancaster, 
at  the  head  of  a  large  army,  being  defeated  by  the  supe- 
rior forces  of  the  king,  was  condemned  by  court-martial 
and  beheaded.  This  proceeding  was  reversed  on  petition 
of  error  in  the  first  parliament  of  Edward  the  Third,  and 
the  following  declared  : 

"1.  That  in  time  of  peace,  no  man  ought  to  be  adjudged 
to  death  for  treason,  or  anj^  other  offence,  without  being 
arraigned  and  held  to  answer  ;  2.  That  regularly,  ivJien  the 
khujs  cO'irts  are  open,  it  is  a  time  of  pea^^e,  in  judgment  of 
Imv  ;  and  3.  That  no  man  ought  to  be  sentenced  to  death, 
by  the  resord  of  the  king,  without  his  legal  trial  per  pares." 

Three  hundred  years  later,  Charles  the  First,  in  time 
of  war,  finding  the  means  wanting  for  its  vigorous  prose- 
cution, had  resort  to  forced  loans,  and,  by  warrant  of  his 
priv}^  counsellors,  committed  Sir  Thomas  Darnell  and 
three  other  gentlemen  to  the  Tower  for  refusing.  They 
brought  a  Jtabeas  corpus  for  their  deliverance,  but  it  being 
argued  that  the  commitment  by  the  king,  for  reasons  of 
state,  was  sufficient  cause,  the  petitioners  were  remanded. 
The  first  Parliament,  however,  that  was  afterwards  sum- 
moned, called  the  judges  to  account  for  this  judgment, 
and  after  a  severe  struggle  between  the  commons  and  the 
crown,  which  lasted  from  March  to  June,  1628,  during 
which  Coke  and  Solden  maintained  the  debate  on  the 
part  of  the  subject,  it  was  finally  resolved,  by  the  Petition 
of  Right,  amjiig  other  things,  that  whereas  divers  com- 
rnlsiioris  have  been  issued,  "by  which  certain  persons 
have  been  assigned  and  appointed  commissioners,  with 
pj-.ver  and  authority  to  proceed  within  the  land  accord- 
iug  to  the  justice  of  martial  law,"  "the  aforesaid  commis- 
sions for  proceeding  by  martial  law,  should  be  revoked 
and  annulled,  and  that  thereafter  no  commissions  of  like 
nature  should  issue  forth  to  any  person  or  persons  what- 
soever." Sir  IVioinas  DarneWs  case,  7  Hargrave's  State 
Trials,  HI,  and  3  HoioelVs  State  Trials,  1-174,  225,  230, 
234. 

The  champions  of  the  Parliament  in  the  contest  over 


the  Petition  of  lliglit  declaied  :  "Without  all  question, 
he  very  point,  scope,  and  drift  of  Magna  Charta  was  to 
reduce  the  regal  to  a  legal  power,  in  matter  of  imprison- 
ment, or  else  it  had  not  l)een  worthy  so  much  contending 
for."  'i^  HoiceWs  State  Trudys,  171;  Sir  Benjamin  Bud- 
yar<rs  Ilej^Jy. 

From  the  day  when  die  answer  of  the  sovereign 
was  given  in  assent  to  this  Petition  of  Eight,  Courts 
Martial  for  the  trial  of  civilians,  upon  the  authority  of 
the  Crown  alone,  have  always  been  held  illegal.  During 
the  great  rebelHon,  when  the  whole  land  was  ravaged 
by  the  opposing  armies  of  the  Parliament  and  the  King, 
irregular  and  illegal  trials  sometimes  occurred,  but  only 
to  be  pointed  at  and  condemned  by  the  historian.  Hume 
observes,  upon  the  history  of  the  commonwealth  : 

"  The  Earl  of  Derby,  Sir  Timothy  Featherstone, 
and  Bemboe,  being  taken  prisoners  after  the  battle  of 
Worcester,  were  put  to  death  by  sentence  of  a  Court 
Martial ;  a  method  of  proceeding  declared  illegal  by 
that  very  petition  of  right,  for  which  a  former  parlia- 
ment had  so  strenuously  contended,  and  which,  after 
great  efforts,  they  had  extorted  from  the  King." 

Tliis  trial  is  narrated  in  5th  State  Trials,  294,  where  it 
appears  to  have  been  ordered  by  Cromwell,  not  by  virtue 
of  his  executive  or  military  authority,  but  by  direction  of 
Parliament ;  as  was  also  the  trial  of  Waller  and  others, 
narrated  in  4  State  Trials,  626.  In  both  cases,  the 
Court  was  composed  partly  of  civilians,  and  was  de- 
nominated a  High  Commission,  or  council  of  war. 

Hale,  in  his  history  of  the  common  law,  says  (page 
34)  :  "  Touching  the  business  of  martial  law,  these 
things  are  to  be  observed,  viz.  : 

First. — That,  in  truth  and  reality,  it  is  not  a  laiv, 
but  something  indulged,  rather  than  allowed  as  a 
law  ;  the  necessity  of  government,  order  and  disci- 
pline in  an  army,  is  that  only  which  can  give 
those  laws  a  countenance,  quod  enim  necesitas  cogit 
de/'endit. 

Secondly. —  This  indulged  laiv  ivas   only  to  extend  to 


78 


members  of  the  army,  or  to  fJtosc  of  the  oppo-^ed  army 
and  never  was  so  much  indulged  as  intended  to 
be  executed  or  exercised  upon  others,  for  others 
who  ivere  not  listed  wider  the  army  held  no  eolor  or 
reason  to  he  hound  by  military  constitutions,  appli- 
cable only  to  the  army,  whereof  thev  were  not 
parts,  but  they  were  to  be  ordered  and  governed 
according  to  the  laws  to  which  they  were  subject, 
though  it  ivere  a  time  of  loar. 

Thirdly.— That  the  exercise  of  martial  law,  whereby 
any  person  should  lose  his  life,  or  member,  or 
liberty,  may  not  be  permitted  in  time  of  peace." 

After  the  restoration  of  Charles,  notwithstanding  the 
severity  shown  to  the  adherents  of  the  commonwealth  ; 
during  the  reaction  of  James  the  Second,  and  the 
introduction  of  William  of  Orange;  notwithstanding 
the  cruelties  arising  out  of  the  invasion  of  the  Pretender, 
and  out  of  the  Irish  rebellion,  I  do  not. find  the  case  of 
a  single  person,  not  connected  with  the  army,  suffering 
death  from  a  court  martial.  I  find,  indeed,  only  four 
cases  of  courts  martial  in  the  State  trials :  the  two 
which  I  have  mentioned  as  occurring  in  the  time  of  the 
commonwealth,  and  two  others  occurring  in  the  time 
of  the  Irish  rebellion.  In  one  of  these,  that  against 
Devereux  (27  State  Trials,  1138),  the  sentence  was 
transportation  ;  and  in  the  other,  that  of  AVolfe  Tone 
(27  State  Trials,  614),  though  the  sentence  was  death, 
the  Court  of  King's  Bench  in  Ireland  issued  a  writ  of 
habeas  corpus,  and  ordered  the  Sherifi  to  take  the 
prisoner  and  the  Provost  Marshal  into  custod}^  and 
prevent  the  execution.  Even  these  courts  martial  in 
Ireland,  I  infer  from  the  Duke  of  Wellington's  dispatch, 
already  quoted,  must  have  been  authorized  by  an  act 
of  the  Irish  parliament.  Whether  that  were  so  or  not, 
the  proceedings  of  the  Irish  government  at  that  period, 
begotten  partly  of  cruelty  and  partly  of  fear,  cannot  justly 
be  drawn  into  precedent.  Even  in  respect  to  the  gov- 
ernment   of   troops   in  England,   and  the  establishment 


79 


of  courts  martial  for  military  offences  committed  by 
military  men,  the  sovereign  has  no  authority,  except 
as  derived  from  the  annual  "  Mutiny  Act." 

Upon  the  accession  of  William  and  Mary  to  the  throne 
of  England,  whenever  extraordinary  measures  were 
thought  necessary  for  the  public  safety,  application  was 
made  to  parliament.  Witness  the  following  on  the  first 
of  March,  1688  :  •'  Mr.  Hamden,  one  of  his  majesty's 
Inost  honorable  privy  council,  acquainted  the  House  that 
he  had  a  message  from  his  majest}^,  'that  his  majesty  had 
had  credible  information,  that  there  are  several  persons 
in  and  about  this  town,  that  keep  private  meetings  and 
cabals,  to  conspire  against  the  government,  and  for  the 
assistance  of  the  late  King  James ;  that  his  majesty  has 
caused  some  of  those  persons  to  be  already  apprehended 
and  secured  upon  suspicion  of  high  treason,  and  that  he 
thinks  he  may  see  cause  to  do  so  by  others,  within  a  little 
time  ;  but  his  majesty  is  between  two  great  difficulties 
in  this  case  ;  for  that,  if  he  should  set  those  persons  at 
liberty  that  are  apprehended  he  would  be  wanting  to  his 
own  safety,  and  the  safety  of  his  government  and  people  ; 
on  the  otheii.  hand,  if  he  should  detain  therh,  he  is  un- 
willing to  do  anything  but  what  shall  be  fully  warranted 
by  law,  which  he  hath  so  often  declared  he  will  preserve  ; 
and  that,  therefore,  if  those  persons  should  deliver  them- 
selves by  the  act  of  Habeas  Corpus,  there  would  be 
another  difficulty.  That  his  majesty  is  likewise  unwilling 
that  excessive  bail  should  be  taken  in  this  case,  his  ma- 
jesty rem^tmbering  that  to  be  one  article  of  the  grievances 
presented  to  him  ;  that  oidinary  bail  will  not  be  sufficient, 
for  men  that  carry  on  such  designs,  in  hopes  of  succeed- 
ing, will  not  stick  at  forfeiting  a  small  sum  ;  and  that  this 
falling  out  when  the  parliament  is  sitting,  his  majesty 
therefore,  thought  fit  to  ask  the  advice  of  this  House 
therein,  and  intends  to  advise  with  the  Lords  also.' 

''Resolved,  iiem,  con.,  That  the  humble  thanks  of  this 
House  be  returned  to  his  majesty  for  his  most  gracious 
message  in  desiring  the  advice  of  this  House. 

"  Resolved,  That  a  temporary  bill  be  brought  in  to  em- 
power his  majesty  to  apprehend  and  detain  all  such  per- 


80 


sons  as  he  shall  have  just  cause  to  suspect  are  consinnng 
against  the  government. 

''Ordered,  That  Mr.  Hamden,  Sir  Eichard  Temple, 
Mr.  Pollexfen,  Mr.  Sacheverell,  Sir  Thos.  Lee,  Sir  Thos. 
Clarges,  Sir  John  Holt,  Mr.  Brewer,  do  immediately  with- 
draw into  the  Speaker's  Chamber,  and  prepare  the  said 
bill,  and  bring  the  same  in  with  all  convenient  speed." 

Of  this  Act  Mr.  Mj^caulay  writes  :  "  The  malcontents 
out  of  doors  did  not  fail  to  remark,  that  in  the  late  reign 
the  Habeas  Corpus  Act  had  not  been  one  day  suspended,' 
and  in  another  place,  III.  Vol.,  37,  he  says  :  "  Even 
James  did  not  venture  to  inflict  death  by  a  sentence  of  a 
court-martial." 

BlacJcsforie  (BooJ{  1,  ff.  413,  414),  says  :  "  For  martial 
law,  which  is  built  upon  no  settled  principles,  but  is 
entirely  arbitrary'  in  its  decisions,  is,  as  Sir  Matthew 
Hale  observes,  in  truth  and  reality,  no  law,  but  some- 
thing indulged,  rather  than  allowed  as  a  law.  The 
necessity  of  order  and  discipline  in  an  army,  is  the  only 
thing  which  can  give  it  countenance,  and  therefore  it 
ought  not  to  be  permitted  in  time  of  peace,  when  the 
king's  Courts  are  open  for  all  persons  to  receive  justice 
according  to  the  laws  of  the  land.  Wherefore  Thomas, 
Earl  of  Lancaster,  being  condemned  at  Pontefract,  15 
Edw.  II.,  by  martial  law,  his  attainder  w^as  reversed, 
1  Edw.  III.,  because  it  was  done  in  time  of  peace. 
And  it  is  laid  dow^n,  that  if  a  lieutenant,  or  other  that 
hath  commission  of  martial  authority,  doth,  in  time  of 
peace,  hang  or  otherwise  execute  any  man,  by  color 
of  martial  law,  this  is  murder,  for  it  is  against  Magna 
Charfa.  The  petition  of  right,  moreover,  enacts  that  no 
soldier  shall  be  quartered  on  the  subject  without  his 
own  consent,  and  that  7?o  commismon  shall  issue  to  j^^oceed 
ivithin  tins  land  according  to  niarficd  law.'' 

Lord  Loughborough,  delivering  the  judgment  of  the 
King's  Bench,  in  Grant  v.  Sir  Charles  Gould  (2  H. 
Black.,  69,  98),  says : 

"  Martial  Icnv,  such  as  it  is  described  by  Hale,  and 
such  also  as  it  is  marked  by  Mr.  Justice  Blackstone, 
does  not  exist  in  England  at  all.  Where  martial  law  is 
established    and   prevails   in    any   country,    it   is    of  a 


81 


totally  different  nature  from  that  which  is  inaccurately 
called  martial  law,  merely  because  the  decision  is  by  a 
court  martial,  but  w-hich  bears  no  affinity  to  tlicit  luhicli 
tvas  formeiiy  attempted  to  he  exercised  in  this  Idngdom, 
which  wris  contrary  to  the  Constitution,  and,  ivldch  has  hee7i 
for  a  century  totally  exploded.'^ 

"  In  the  reign  of  King  William  there  was  a  conspiracy 
against  his  person  in  Holland,  and  the  persons  guilty 
of  that  conspiracy  were  tried  by  a  council  of  officers. 
There  was  also  a  conspiracy  against  him  in  England, 
but  the  conspirators  were  tried  by  the  common  law. 
And  wdthin  a  very  recent  period,  the  incendiaries  who 
attempted  to  set  fire  to  the  docks  at  Portsmouth,  were 
tried  l)y  the  common  law.  In  this  country,  all  the 
delinquencies  of  soldiers  are  not  triable  as  in  most 
countries  in  Europe,  by  martial  law,  but,  where  they 
are  ordinary  offences  against  the  civil  peace,  they  are 
tried  by  the  common  law  Courts.  Therefore  it  is  totally 
inaccurcde  to  state  martial  laio  as  having  any  place  ivhatever 
ivlthin  the  realm  of  Greed  Britainy 

"  The  object  of  the  Mutiny  xlct  therefore,  is  to  create  a 
Court  invested  with  authority  to  try  those  who  are  a  part 
of  the  army,  in  all  their  different  descriptions  of  officers 
and  soldiers,  and  the  object  of  the  trial  is  limited  to  mili- 
tary duty.  Even  by  the  extensive  power  granted  by  the 
Legislature  to  his  Majesty,  to  make  articles  of  war,  those 
articles  are  to  be  for  the  better  government  of  his  forces, 
and  can  extend  no  further  than  they  are,  though  neces- 
sary to  the  regularity  and  discipline  of  the  army." 

The  case  to  which  Lord  Loughborough  refers,  as  occur- 
ring at  Portsmouth,  is,  doubtless,  the  case  of  Hill,  given  in 
20,  State  Trials,  1320.  This  man  had  the  audacity  to 
pretend  that  he  was  encouraged  by  Silas  Deane  to  set  fire 
to  the  English  docks,  and  even  intimated  that  this  enter- 
prise had  the  countenance  of  Dr.  Franklin  !  It  is  a 
curious  instance  of  the  delusion  which  sometimes  takes 
possession  of  whole  communities,  that  the  English  people 
really  believed  this  absurd  pretence. 

The  preamble  to  the  first  Mutiny  Act,  passed  in  the 
time  of  "William  and  Marv,  recorded  that  :  '*  Whereas  no 
11 


82 


man  may  be  forejudged  of  life  or  limb  or  subjected  to  any 
kind  of  punishment  b}'  martial  law,  or  in  any  other 
manner  than  by  the  judgment  of  his  peers  and  according 
to  the  known  and  established  laws  of  this  realm."  In 
subsequent  acts  the  words  "in  time  of  peace"  are  in- 
serted after  the  word  "  subjected,"  but  this  must  be  un- 
derstood as  referring  to  the  time  of  peace  defined  by 
Coke. 

The  Acts  which  have  been  framed  at  different  periods 
for  the  suspension  of  the  privilege  of  Habeas  Corpus,  and 
for  indemnity  to  the  ministers  against  prosecutions  for 
extreme  measures,  give  no  sanction,  in  any  shape,  to 
Courts  MartiaL  The  suspension  extends  only  to  the 
privilege  of  relief  from  temporary  imprisonment,  and  the 
indemnity  is  from  the  consequences  of  ordering  it. 

The  case  of  the  Eev.  Mr.  Smith,  which  occurred  in 
Demarai  a  in  1823,  gave  rise  to  a  debate  in  the  British  Par- 
liament, that  will  be  forever  famous  for  the  speeches  of 
Brougham  and  Mackintosh.  The  latter,  especially,  took 
occasion  to  examine  the  foundation  to  the  claim  to  exer- 
cise martial  rule ;  and  his  explanation  and  reasoning 
will  always  be  accounted  high  authority. 

Subsequently,  a  case  under  Lord  Torrington  occurred 
in  CeyloD.  Here  again  arose  a  debate  in  the  British 
Parliament,  during  which  Wellington  made  the  speech 
from  which  I  have  quoted  ;  and  there  was  also  an  elabor- 
ate examination  of  the  subject  before  a  Committee  of  the 
Commons  in  1849. 

There  have  been  also  proclamations  of  martial  rule,  by 
other  English  colonial  governors,  in  a  few  instances : 
twice  in  New  Zealand,  and  twice  in  Australia;  but 
thes.e  exhibitions  of  a  little  brief  authority  in  remote 
dependencies  have  received  great  animadversion  in  the 
mother  country.  In  the  English  Law  Magazine,  of 
November,  1861,  is  an  exposure  of  the  lawlessness  of  the 
the  authority,  which  these  colonial  governors  took  upon 
themselves  to  exercise. 

Lastly,  within  six  months  Gordon's  case  in  Jamaica 
has  renewed  the  discussion  about  the  legality  of  martial 
rule.     There  was  a  statute   of  the  Colonial  Legislature, 


83 


providing  for  its  establishment :  but  nevertheless  the 
opinion  of  English  counsel,  and  of  the  English  public, 
appears  to  be  that  the  act  of  the  Governor  of  Jamaica 
was  without  warrant  in  law,  and  that  he  ought  for  it  to 
be  brought  to  exemplary  punishment. 

These  various  debates,  discussions,  and  opinions  are 
abundant  evidence,  that  martial  rule  for  others  than  mar- 
tial persons,  will  never  be  tolerated  bj  the  free  people  of 
England. 

Even  when  courts  martial  have  been  authorized,  their 
abuses  have  been  punished  with  great  severity.  The 
case  of  Governor  Wall,  who  was  hanged  in  England,  in 
1802,  for  causing  a  sergeant,  at  Goree,  in  Africa,  in  1782, 
to  be  whipped  till  he  died,  is  given  in  the  State  Trials, 
Vol.  28.  There  is  also  a  case  of  Wright  agt.  Fitzgerald, 
27  State  trials,  where  the  plaintiff  recovered  £500  for 
cruelties  practised  during  the  Irish  rebellion  under  color 
of  the  despotic  power  given  by  the  Irish  Parliament  and 
the  Lord  Lieutenant.  The  case  of  Lieutenant  Erye,  men- 
tioned in  McArthuron  Courts-martial,  is  refreshing  to  all, 
who  love  to  see  the  law  vindicated,  the  dignity  and  inde- 
pendence of  the  judiciary  maintained,  and  the  insolence 
of  power  humbled. 

Let  us  turn  now  to  France,  as  France  was  when  she 
had  a  constitutional  government.  I  have  shown  what 
the  King  of  England  cannot  do.  Let  me  show^  what  the 
constitutional  King  of  France  could  not  do. 

On  the  continent  of  Europe,  the  legal  formula  for  put- 
ting a  place  under  martial  rule  is  to  declare  it  in  a  state 
of  siege  ;  as  if  there  were  in  the  minds  of  lawyers  every- 
where, no  justification  for  such  a  measure  but  the  exi- 
gencies of  impending  battle.  The  charter  established 
for  the  government  of  France,  on  the  final  expulsion  of 
the  first  Napoleon,  contained  these  provisions: 

Art. — "  The  king  is  the  supreme  chief  of  the  state  ; 
he  commands  the  forces  by  sea  and  land  ;  declares  war  ; 
makes  treaties  of  peace,  alliance  and  commerce  ;  appoints 
to  every  oflice  and  agency  of  public  administration  ;  and 
makes  rules  end  ordinances  necessary  for  the  execution 
of  the  laws,  without  the  power  ever  of  suspending  them^ 
or  dispensing  with  their  execution." 


84 


Art. — "  Tlie  king  alone  sanctions  and  promulgates 
the  laws."  Art. — "  No  person  can  be  withdrawn  from 
his  natural  judges."  Art. — "  Therefore  there  cannot 
be  erected  commissions  or  extraordinary  tribunals." 
AVhen  Charles  the  Tenth  was  driven  from  the  kingdom, 
the  last  Article  was  amended  by  adding  the  words,  "under 
what  name  or  denomination  soever  ;"  Dupin,  giving  the 
reason  thus  :  "  In  order  to  prevent  every  possible  abuse, 
we  have  added  to  the  former  text  of  the  charter  '  under 
what  name  or  denomination  soever,'  for  specious  names, 
have  never  been  wanting  for  bad  things,  and  without  this 
precaution  the  title  of  *  ordinary  tribunal '  might  be  con- 
ferred on  the  most  irregular  and  extraordinary  of  courts." 

Now,  it  so  happened,  that  two  years  later  the  strength 
of  these  constitutional  provisions  was  to  be  tested.  A 
formidable  insurrection  broke  out  in  France.  The  king 
issued  an  order,  dated  June  6th,  1832,  placing  Paris  in  a 
state  of  siege,  founded  "  on  the  necessity  of  suppressing 
seditious  assemblages  which  had  appeared  in  arms  in  the 
capital,  during  the  days  of  June  5th  and  6th ;  on  attacks 
upon  public  and  private  property;  on  assasinations  of 
national  guards,  troops  of  the  line,  municipal  guards  and 
officers  in  the  public  service ;  and  on  the  necessity  of 
prompt  and  energetic  measures  to  protect  public  safety 
against  the  renewal  of  similar  attacks."  On  the  18tli  of 
June,  one  Geoffroy.  designer,  of  Paris,  was  by  a  decision 
of  the  second  militarj^  commission  of  Paris  declared 
"  guilty  of  an  attack,  with  intent  to  subvert  the  govern- 
ment and  to  excite  civil  war,"  and  condemned  to  death. 

He  appealed  to  the  Court  of  Cassation.  Odilon 
Barrot,  a  leader  of  the  French  Bar,  undertook  his  case, 
and  after  a  discussion  memorable  forever  for  the  spirit 
and  learning  of  the  advocates,  and  the  dignity  and  inde- 
pendence of  the  judges,  the  court  gave  judgment,  that 
"  Whereas,  Geoffroy  brought  l>efore  the  2d  military 
commision  of  the  first  military  division  is  neither  in 
the  army  nor  impressed  with  a  military  character,  yet 
nevertheless  said  tribunal  has  implicitly  declared  itself  to 
have  jurisdiction  and  passed  upon  the  merits,  wherein  it 
has  committed  an  excess  of  power,  violated  the  limits  of 


So 


its  jurisdiction  and  (he  provisions  of  Articles  53  and  54 
of  the  charter  and  those  of  the  laws  above  cited  :  On 
these  grounds  the  court -reverses  and  annuls  the  proceed- 
ings instituted  against  the  appellant  before  the  said 
commission,  whatsoever  has  followed  therefrom,  and  es- 
pecially the  judgment  of  condemnation  of  the  18tli  of 
June,  instant ;  and  in  order  that  further  proceedings  be 
had  according  to  law,  remands  him  before  one  of  thf 
judges  of  instruction  of  the  court  of  first  instance  oe 
Paris,"  &G. 

Thereupon,  this  king,  invested  with  the  purple,  born  of 
a  race  of  kings,  the  descendant  of  St.  Louis,  with  all  the 
traditions  of  the  monarchy  to  uphold  him,  with  the  mar- 
shals of  France,  commanding,  in  the  streets  of  Paris, 
a  large  and  veteran  army,  this  king  nevertheless  bowed 
before  the  judges,  and  released  the  prisoner  from  military 
custody. 

Mark  now  the  change  which  has  taken  place  in  France. 
When  the  government  of  Louis  Philippe  was  replaced  by 
a  republic,  the  power  of  declaring  a  state  of  siege  was 
taken  from  the  executive  and  given  to  tlie  legislature. 
But  when  Louis  Napoleon  began  his  usurpation  his 
first  step  was  to  issue  this  decree  of  the  2d  of  December. 
"  The  President  of  the  Kepublic  decrees — 

1st. — "  The  National  Assembly  is  dissolved. 

2d. — "  Universal  suffrage  is  re-established. 

3d. — "  The  French  people  are  convoked  in  their 
various  districts  from  the  14th  to  the  21st  of 
December, 

4th. — "  The  state  of  siege  is  declared  in  the  ivhole 
extent  of  the  first  military  division. 

5th.—"  The  Council  of  State  is  dissolved." 

By  these  means  he  was  enabled  to  plant  his  foot  on  the 
necks  of  thirty  millions  of  the  French.  And  when  he 
afterwards  came  to  frame  the  Constitution  of  his  empire, 
he  inserted  this  article  :  "  He  (the  emperor)  has  the  right 


86 


of  declaring  a  state  of  siege  in  one  or  more  departments, 
provided  that  he  inform  the  Senate  thereof  with  the  least 
delay." 

This  brief  account  of  the  practice  of  the  three  great 
constitutional  governments  of  modern  times,  shows  us 
that  in  the  degree  in  which  a  country  becomes  iree,  in 
that  degree  the  military  is  made  dependent  upon  and 
subordinate  to  the  civil  power.  Siloit  le.gej^  infer  arma 
was  never  the  maxim  of  free  and  brave  men.  Let  us  rather 
recur  to  that  older  and  better  maxim,  cedant  anna  togce  ; 
which  prevailed  when  Roman  citizenship  was  a  sigh  of 
freedom  as  well  as  glory,  and  the  proud  words,  "  I  am  a 
Roman  citizen,"  were  a  protection,  against  lawless  power, 
in  the  depths  of  Scythian  forests  or  under  the  shadow  of 
African  mountains.  May  we  not  expect,  that  fmm  this 
day  forth  the  prouder  claim,  "  I  am  an  Atnericaii  citizen," 
will  bo  a  title  and  guaranty  of  freedom  from  all  human 
rule  but  of  the  law  of  the  land. 

Here,  then,  if  the  Court  please,  I  close  my  argument 
against  the  competency  of  the  military  commission  which 
was  convened  at  Indianapolis  in  the  Autumn  of  1864,  for 
the  trial  of  the  petitioners. 

It  remains  to  consider  what  remedy,  if  any,  tliey  had 
against  this  unlawful  judgment  and  its  threatened  ex- 
ecution. 

The  great  remedj^  provided  by  our  legal  and  political 
system  for  unlawful  restraint,  whether  upon  pretended 
judgments,  decrees,  sentences,  warrants,  orders,  or  other- 
wise, is  the  writ  of  habeas  corpus. 

The  writ  of  prohibition  from  Circuit  Courts  is  not 
authorized  by  Congress,  except  to  the  District  Courts. 
Probably  the  State  Courts  might  issue  it,  but  that  course 
would  be  more  likely  to  lead  to  a  collision,  than  if  the 
remedy  came  from  the  Federal  Tribunals.  And  it  would 
be  at  the  best,  but  a  dilatory  proceeding ;  and  before  its 
termination  the  mischief  might  be  remediless.  The  writ 
of  mandamus  is  altogether  inappropriate. 

The  remedy  which  each  of  the  petitioners  asked  in 
the  present  case  was,  "  that  under  the  Act  of  Congress 
approved  March  3,   1863,  entitled   'An  Act  relating  to 


87 


HaleciH  Corpus  and  regulating  judicial  proceedings  in 
certain  cases,'  he  may  [might]  be  brought  before  this 
Court  by  writ  of  habeas  corpus,  or  such  other  process  as 
the  Court  [might]  award  for  that  purpose  ;  together  with 
the  cause  of  his  caption  and  detention  ;  to  do  and  receive 
whatsoever  the  Court  [might],  upon  full  and  final  hear- 
ing, order  and  adjudge  in  relation  thereto,  in  pursuance 
of  the  Act  of  Congress  aforesaid  ;  and  that,  at  all  events, 
he  [might]  be  delivered  from  said  military  custody  and 
imprisonment ;  and  if  found  probably  guilty  of  any  im- 
proper conduct  or  offence  against  the  United  States  of 
America,  turned  over  to  the  proper  civil  tribunal  for 
inquiry  and  punishment,  according  to  law,  or  for  dis- 
charge from  custody  altogether." 

The  Act  of  Congress,  referred  to  in  this  prayer,  has  been 
already  referred  to,  biit  a  little  more  detail  may  be  now 
necessary.  After  declaring  that  "  a  list  of  the  names  of 
all  persons,  citizens  of  States  in  which  the  administration 
of  the  law  has  continued  unimpaired  in  the  said  Federal 
Courts,  who  are  now  or  may  hereafter  be  held  as  pris- 
oners of  the  United  States,  by  order  or  authority  of 
the  President  of  the  United  States,  or  eitht^'  of  said 
secretaries,  in  any  fort,  arsenal,  or  other  place,  as  State 
or  poltical  prisoners,  or  otherwise  than  as  prisoners  of 
war,"  it  proceeds  to  enact  that  "in  all  cases  where  a 
grand  jury,  having  attended  any  of  said  Courts  having 
jurisdiction  in  the  premises,  after  the  passage  of  this 
Act,  and  after  the  furnishing  of  said  list  as  aforesaid 
has  terminated  its  session  wdthout  finding  an  indictment 
or  presentment,  or  other  proceeding  against  any  such 
person,  it  shall  be  the  duty  of  the  Judge  of  said  Court 
forthwith  to  make  an  order,  that  an}^  such  prisoner, 
desiring  a  discharge  from  said  imprisonment,  be  brought 
before  him  to  be  discharged ;  and  any  officer  of  the 
United  States  having  custody  of  such  prisoner  is  hereby 
directed  immediately  to  obey  and  execute  such  order ; 
and  in  case  he  shall  delay,  or  refuse  so  to  do,  he  shall 
be  subject  to  indictment  for  a  misdemeanor,  and  be 
punished  by  a  fine  of  not  less  than  five  hundred  dollars, 
and  imprisonment  in  the  county  jail  for  a  period  not  less 


88 

than  six  months,  in  the  discretion  of  the  Court."  By 
the  third  section,  it  is  provided  that  if  the  list  is  not 
furnished,  any  citizen  may  apply,  on  oath,  for  the 
order. 

Whether,  therefore,  in  the  present  case,  the  remedy 
should  be  by  the  technical  writ  of  habeas  corpus,  or  by 
a  still  more  summary  order  in  the  nature  of  the  writ, 
does  not  appear  to  be  material.  The  questions  certified, 
relating  to  the  remedy,  are :  1st.  Whether  the  writ  of 
habeas  corpus  ought  to  be  issued  ;  and,  2d.  Whether  the 
petitioner  ought  to  be  discharged. 

The  writ  and  the  order  may  be  equally  efficacious,  but 
inasmuch  as  the  order  may  certainly  take  the  form  of 
the  wTit,  and  as  the  proceedings  upon  the  w^rit  are  well 
understood,  and  as  that  great  writ  of  freedom  lies  as 
deep  in  the  foundations  of  the  law  as  in  the  heai»ts  of 
freemen,  the  argument  may  be  addressed  chiefly  to 
that.  Recurring,  therefore,  to  the  three  propositions 
concerning  the  remedy  which  I  stated  at  the  outset 
of  my  argument,  I  shall  proceed  to  discuss  them.  The 
argument  will,  of  course,  be  much  abridged,  by  what 
has  been  already  observed  respecting  the  nature  and 
extent  of  martial  power. 

The  authority  to  suspend  the  privilege  of  the  habeas 
corpus  is  derived,  it  is  said,  from  tw^o  sources  :  first, 
from  the  martial  power ;  and,  second,  from  the  second 
subdivision  of  the  Ninth  Section  of  the  First  Article  of 
the  Federal  Constitution. 

As  to  the  martial  power,  I  have  already  discussed  it 
so  fully  that  I  need  not  discuss  it  again.  I  trust  it  has 
been  shown,  that  this  powder — the  war  power,  as  it  is 
fashionable  to  call  it--belongs  to  Congress,  and  not  to 
the  President ;  and  that  his  function  is  to  execute,  in 
that  respect,  the  wdll  of  Congress.  His  power  is  no 
more  the  war  power  than  is  that  of  General  Grant, 
or  any  other  subordinate  ;  for  the  President,  as  com- 
mander in  chief,  is  only,  as  Hamilton  describes  him, 
the  "first  general  and  admiral  of  the  confederacy." 

If  the  President,  as  commander  in  chief  of  the  army, 
navy,  and  militia  in  federal  service,  has  not  the  power  of 


89 


martial  rule  over  others  than  martial  persons,  he  cannot 
control  them  by  either  trial  or  arrest,  or  detain  them, 
against  the  interposition,  or  in  defiance  of  the  judicial 
power.  As  a  question,  therefore,  under  what  has  been 
incorrectly  called  the  War  Power  of  the  President,  I 
submit  that  it  is  no  longer  worth  considering. 

How,  then,  stands  the  question,  upon  the  text  of  the 
Constitution  ?  This  is  the  language  :  "  The  privilege  of 
the  writ  of  habeas  corpus  shall  not  be  suspended  unless 
when  in  cases  of  rebellion  or  invasion  the  public  safety 
may  require  it."  My  argument  will  be  confined  to  this 
phrase,  and  its  true  interpretation.  Its  importance, 
upon  the  present  occasion,  consists  in  this  :  If  the 
President,  and  he  alone,  is  invested  by  this  clause 
with  the  power  of  suspending  the  privilege — if  he  cannot 
be  controlled  by  Congress  in  its  exercise — ^then  I  know 
not  how  the  petitioners  could  be  relieved  from  the 
custody  of  the  Provost  Marshal,  however  illegal  their 
trial  and  conviction  may  have  been. 

Each  of  the  three  great  departments  of  government 
is  independent  in  its  own  sphere,  and  if  it  be  once 
granted,  that  the  power  in  this  respect  belongs  to  the 
President  alone,  I  am  unable  to  perceive  that  Congress 
can  rightfully  control  him  in  its  exercise,  or  subject  his 
discretion  to  theirs. 

The  clause  in  question  certainly  either  grants  the 
power  or  implies  that  it  is  already  granted,  and  in  either 
case  it  belongs  to  the  legislative,  executive  and  judicial 
departments,  concurrently,  or  to  some  excluding  the 
rest. 

There  have  been  four  theories  :  one  that  it  belongs  to 
all  the  departments  ;  a  second,  that  it  belongs  to  the 
legislature  ;  a  third,  that  it  belongs  to  the  executive ;  and 
the  fourth,  that  it  belongs  to  the  judiciary. 

Is  the  clause  a  girint  or  di,  limitation  of  power?  Look- 
ing only  at  the  form  of  expression,  it  should  be  regarded 
as  a  limitation  ;  like  the  next  subdivision  which  is  in 
these  words  :  "  No  bill  of  attainder  or  ex  post  facto  law 
shall  be  passed." 

In  no  other  part  of  the  Constitution  is  such  a  plirase 
12 


90 


used  to  express  a  grant  of  power.  The  advocates  of  such 
a  construction  are  obliged  te  say,  that  the  clause  is  ellip- 
tical, and  should  be  read  as  if  it  were  as  follows  :  The 
privilege  shall  not  be  suspended,  unless,  when  in  cases 
of  rebelUion  or  invasion,  the  public  safety  may  require  it, 
and  then  it  may  be  suspended.  This  is  a  strained  construc- 
tion, not  at  all  in  harmony  with  the  general  simplicity  of 
the  Constitution. 

Next  as  a  grant  of  power  it  would  be  superfluous,  for 
it  is  clearly  an  incident  of  others  which  are  granted. 
Take  for  example  the  power  to  raise  and  support  armies. 
In  a  time  of  war,  the  unrestrained  issue  of  the  writ  might 
seriously  embarrass  the  Government  in  keeping  together 
under  proper  discipline  either  recruits  or  drafted  men  > 
for  which  reason  it  might  be  necessary  or  proper  to 
suspend  the  privilege  during  the  exigency.  Can  it  be 
doubted  that  Congress  would  have  the  power  to  enact 
that,  while  the  exigency  lasted,  no  soldier  should  be 
brought  before  a  State  Court  on  habeas  corpus  ? 

Then  regarding  the  clause,  according  to  its  place  in  the 
Constitution,  it  should  be  deemed  a  limifation  ;  for  it  is 
placed  with  six  other  subdivisions  in  the  same  section, 
every  one  of  which  is  a  limitation.  li  implies  that  the 
power  has  been  already  granted,  just  as  in  the  4th  and 
6th  subdivisions,  a  power  is  implied.  Thus  the  4th  de- 
clares that  "  No  capitation  or  other  direct  tax  shall  be 
laid  unless  in  proportion  to  the  census,  or  enumeration 
hereinbefore  directed  to  be  taken,"  and  the  6th,  that  "  no 
money  shall  be  drawn  from  the  treasury,  but  in  conse- 
quence of  appropriations  made  by  law." 

If  the  sentence  respecting  the  habeas  corpus  be,  as  I 
contend,  a  limitation,  and  not  a  grant  of  power,  we  must 
look  into  other  parts  of  the  Constitution  to  find  the  grant; 
and  if  we  find  none  making  it  to  the  President  beyond 
his  appointment  as  commander  in  chief,  and  it  has  been 
shown  that  there  is  none  in  that,  it  follows  that  the  power 
is  in  the  legislative  or  the  judicial  department.  How  it 
should  be  in  the  judiciary,  it  is  not  easy  to  see.  That 
department  has  no  other  function  than  to  judge.  It  can- 
not refuse  or  delay  justice.     But  if  it  were  assumed,  that 


91 


tlie  power  of  suspending  the  privilege  of  the  writ  belongs 
to  the  judicial  department,  it  is  quite  clear  that  the  pres- 
ent is  a  case,  where  the  writ  would 'not  be  denied  bj  the 
Courts,  or  any  of  its  privileges  withheld. 

If  the  clause  in  question  be  deemed  a  gnmt  of  power, 
the  question  occurs,  to  whom  is  the  grant  made?  The 
following  considerations  go  to  show  that  is  to  be  deemed 
as  made  to  Congress  : 

First. — The  debates  in  the  Convention  which  framed 
the  Constitution  seem,  at  least  to  suppose,  that  the  power 
was  given  to  Congress,  and  to  Congress  alone. 

Second. — The  debates  in  the  various  State  Conventions 
which  ratified  the  Constitution  do  most  certainly  proceed 
upon  that  supposition. 

Third. — The  place  in  which  the  provision  is  left,  indi- 
cates, if  it  does  not  absolutely  decide,  that  it  relates  only 
to  the  powers  of  Congress.  It  is  not  in  the  second  article 
which  treats  of  the  executive  department.  It  is  not  in 
the  third,  which  treats  of  the  judicial  department.  It  is 
in  the  first  article,  which  treats  of  the  legislative  depart- 
ment. There  is  not  another  subdivision  in  all  the  seven 
subdivisions  of  the  ninth  Section,  which  does  not  relate 
to  Congress  in  part,  at  least,  and  most  of  them  relate  to 
Congress  alone. 

Thus,  the  first  is  :  "  The  migration  or  importation  of 
such  persons  as  any  of  the  States  now  existing  shall  think 
proper  to  admit,  shall  not  be  prohibited  by  the  Congress 
prior  to  1808,"  (fee.  That  is  clearly  a  restriction  upon 
Congress.  The  second  is  :  "  The  privilege  of  the  writ  of 
habeas  corpus  shall  not  be  suspended,"  etc.  Third  :  "  No 
bill  of  attainder,  or  ex  pod  facto  law,  shall  be  passed." 
That  is  clearly  a  limitation  on  Congress.  Fourth  :  "  No 
capitation,  or  other  direct  tax,  shall  be  laid,  unless  in  pro- 
portion to  the  census,"  <fec.  That  is  a  limitation  upon  Con- 
gress. Fifth  :  "  No  tax  or  duty  shall  be  laid  on  articles 
exported  from  any  State."  That  also  is  a  limitation  upon 
Congress.  Sixth  :  "  No  preference  shall  be  given  by  any 
regulation  of  commerce  or  revenue  to  the  ports  of  one  State 


92 


over  those  of  another,"  etc.  That  is  a  restriction  on  the 
powers  of  Congress.  Seventh :  "No  money  shall  be  drawn 
from  the  Treasury,  but  in  consequence  of  appropriations 
made  by  law,"  &g.  That  is  a  restriction  upon  all  depart- 
ments of  Government ;  upon  Congress  not  less  than  the 
others  ;  and  finds  its  proper  place  here,  because  it  is  Con- 
gress that  appropriates  mone^^  Eighth  :  "  No  title  of  no- 
bility shall  be  granted  by  the  United  States."  Does  any 
body  suppose  that  to  be  a  restriction  on  the  President? 
Could  he  grant  a  title  of  nobility  ?  And  then  follows  a 
general  restriction :  "  No  person  holding  any  office  of  profit 
or  trust  under  them  "  [the  United  States]  "  shall,  without 
the  consent  of  the  Congress,  accept  of  any  present, 
emolument,  office,  or  title,  of  any  kind  whatever,  from  any 
king,  prince  or  foreign  state." 

The  Constitution  is  remarkable  for  its  arrangement 
of  the  subjects  embraced  in  it.  There  is  scarcely 
another  instrument  to  which  the  rule,  noscitur  a  sociis, 
can  be  better  applied,  for  its  interpretation.  The 
different  topics  are  grouped  together,  with  a  careful 
regard  to  their  proper  places.  Thus  it  begins,  in  its 
first  article,  with  creating,  empowering  and  restricting 
the  legislative  department ;  passing,  in  the  tenth  section, 
to  restrictions  upon  the  States,  in  matters  which,  for  the 
most  part,  pertain  to  Congress,  or  in  which  the  States 
might  thwart  the  policy  of  Congress.  If  the  clause 
respecting  the  habeas  corpus  be  a  grant  of  power  to  the 
President,  it  is  the  only  one  in  the  whole  article.  Not 
only  does  the  article  contain  no  grant  to  that  officer, 
but  the  ninth  section  contains  no  grant  to  any  of  the 
departments  of  government. 

Fourth. — The  constitutional  law  of  the  mother  country 
had  been  long  settled,  that  the  power  of  suspending  the 
privilege  of  the  writ,  or,  as  it  w^as  sometimes  called, 
suspending  the  writ  itself,  belonged  only  to  Parliament. 
With  this  principle  firmly  seated  in  the  minds  of  lawyers, 
it  seems  incredible  that  so  vast  a  change,  as  conferring 
the  grant  upon  the  executive,  should  have  been  so  loosely 
and  carelessly  expressed. 


93 


Fifth. — The  ]n'e vailing  sentiment  of  the  time  when 
the  Constitution  was  framed,  was  a  dislike  and  dread  of 
executive  authority.  It  is  hardly  to  be  believed,  that  so 
vast  and  dangerous  a  power  would  have  been  conferred 
upon  the  President,  without  providing  some  safeguards 
against  its  abuse. 

Sixth. — Every  judicial  opinion,  and  every  commentar}' 
on  the  Constitution,  up  to  the  period  of  the  rebellion, 
treated  the  power  as  belonging  to  Congress,  and  to  that 
department  alone. 

Taking  thus  the  context,* the  universal  understanding 
of  the  time,  the  contemporaneous  exposition,  the  subse- 
quent commentaries,  and  the  political  reasons  which 
may  be  supposed  to  have  affected  the  statesmen  of 
that  day,  the  argument  should  seem  to  be  conclusive, 
that  the  power  of  suspending  the  privilege  of  the  writ 
of  habeas  corpus  appertains  to  the  legislative  department 
of  the  Government,  and  to  that  alone.  It  has,  I  know, 
been  argued  that  there  is  an  incongruity  in  authorizing 
Congress  to  suspend  its  own  law.  This  is  too  narrow 
a  view  of  the  subject.  The  States  have  judicial  estab- 
lishments which  can  and  do  issue  writs  of  hal)eas  corpus, 
an  hundred-fold  more  in  number  than  the  w^'its  issued 
from  the  federal  Courts.  Indeed,  it  may  be  regarded 
as  a  provision  made,  rather  in  reference  to  the  writ  of 
habeas  corpus  in  the  States,  than  to  the  writ  as  likely  to 
be  issued  under  the  authority  of  Congress. 

The  straits  to  which  the  country  was  reduced  during 
the  late  wicked  rebellion,  and  the  omission  of  Congress 
for  two  years  to  authorize  the  suspension  of  the  privilege, 
gave  rise  to  a  series  of  discussions  on  the  subject.  Most 
of  the  writers — indeed,  I  believe,  all  but  three — took 
decided  ground  for  the  interpretation,  which,  I  submit, 
is  the  true  one.  One  of  the  three  supposed  the  power 
to  reside  in  the  judicial  department.  Among  those  who 
thought  it  belonged  to  the  executive,  there  was  one  so 
able  and  distinguished  that  I  cannot  forbear  mentioning 


94 


Lis  name  in  this  connection.  Horace  Binney,  "  clarum 
et  venerabile  nomcn,''  argued,  with  all  his  ability,  for  that 
interpretation  which  gave  the  power  to  the  President, 
to  be  exercised,  not  in  a  military,  but  m  a  civil  capacity. 
The  authority  of  that  great  man,  the  acknowledged  head 
of  the  Bar  of  his  country,  is  such,  that  if  it  ctnild  not 
give  the  interpretation  an  adequate  sanction,  nothing 
else  may  be  expected  to  do  it. 

Supposing,  then,  the  power  to  belong  to  Congress,  as 
I  have  endeavored  to  show  that  it  does,  we  find  it  exer- 
cised by  the  Act  of  March  3,  1863,  and  by  none  other. 
The  first  section  of  that  Act  is  as  follows  : 

"  That  during  the  present  rebellion,  the  President  of 
the  United  States,  whenever,  in  his  judgment  the  public 
safety  may  require  it,  is  authorized  to  suspend  the  privi- 
lege of  the  writ  of  haleas  corpus  in  any  case  throughout 
the  United  States,  or  any  part  thereof.  And  whenever 
and  wherever  the  said  privilege  shall  be  suspended,  as 
aforesaid,  no  military  or  other  offic-er  shall  be  compelled, 
in  answer  to  any  writ  of  habeas  corpus,  to  return  the  body 
of  any  person  or  persons  detained  by  him  by  the  authority 
of  the  President ;  but  upon  the  certificate,  under  oath,  of 
the  officer  having  charge  of  any  one  so  detained,  that 
such  person  is  detained  by  him  as  a  prisoner,  under 
authority  of  the  President,  further  proceedings  under  the 
writ  of  habeas  corpus  shall  be  suspended  by  the  Judge  or 
Court  having  issued  the  said  writ,  so  long  as  said  suspen- 
sion by  the  President  shall  remain  in  force,  and  said 
rebellion  continue." 

"Without  stopping  to  consider  whether  the  power  could 
be  delegated  by  Congress,  or,  if  it  could,  whether  the. 
delegation  could  be  made  in  terms  so  general,  I  pass  to 
an  examination  of  the  President's  action  under  the  Act. 
There  were  two  proclamations  on  the  subject  issued  by 
him  afterwards.  One  was  on  the  15th  of  September, 
1863,  and  declared  : 

"  That  the  privilege  of  the  said  writ  shall  now  be  sus- 
pended throughout  the  United  States,  in  the  cases  where, 
by  the  authority  of  the  President  of  the  United  States, 
military,  naval,  and  civil  officers  of  the  United  States,  or 


\)o 


any  of  them,  bold  persons  under  their  command,  or  in 
their  custody,  either  as  prisoners  of  war,  spies,  or  aiders 
or  abettors  of  the  enemy,  or  officers,  soldiers,  or  seamen 
enrolled  or  drafted,  or  mustered,  or  enlisted  in,  or  belong- 
ino-  to  the  land  or  naval  forces  of  the  United  States,  or 
as  deserters  therefrom,  or  otherwise  amenable  to  military 
law,  or  the  rules  and  articles  of  war,  or  the  rules  and 
regulations  prescribed  for  the  military  or  naval  forces,  by 
authority  of  the  Presiclent  of  the  United  States,  or  for 
resisting  a  draft,  or  for  any  other  offence  against  the 
military  or  naval  service." 

The  proclamation  of  July  5,  1864,  related  only  to  the 
State  of  Kentucky. 

If  therefore,  for  the  sake  of  the  argument,  we  admit, 
that  when  the  petitioner  was  first  arrested,  the  privilege 
of  the  writ  was  suspended  as  to  him,  by  virtue  of  the  Act 
of  March,  1863,  and  the  President's  proclamation  of  Sep- 
tember 15,  1863,  it  is  nevertheless  certain,  that  under  the 
First  Section  of  the  Act  the  writ  ought  to  issue,  leaving 
the  further  disposition  of  the  case  to  depend  upon  the 
return  or  certificate  mentioned  in  the  section,  and  that 
under  the  Third  Section  of  the  Act,  the  suspension  ceased 
at  the  end  of  twenty  days  from  the  27th  of  January,  1865, 
that  is  on  the  17th  of  February  of  that  year.  A  term  of 
the  Circuit  Court  of  the  United  States  was  held  on  the 
2d  of  January,  1865,  and  adjourned  on  the  27th  of  the 
same  month.  At  this  term  a  grand  jury  was  empanneled, 
sworn,  and  charged,  and  adjourned  without  finding  any 
indictment  or  presentment  against  the  petitioners.  The 
sentence  against  them  was  approved  and  promulgated 
more  than  two  months  afterwards.  Therefore,  by  this 
Act  of  Congress,  duly  passed  and  approved  by  the  Presi- 
dent, the  petitioners  were  entitled  to  the  writ,  or  an  order 
in  the  nature  of  the  writ,  that  they  might  be  discharged. 

And  so  we  submit  to  the  Court,  that  the  answers  to  the 
three  questions,  certified  by  the  Court  below,  should  be, 
to  the  first,  that,  on  the  facts  stated  in  the  petition  and 
exhibits,  a  writ  of  habeas  corpus  ought  to  be  issued  ac- 
cording to  the  prayer  of  the  petition  ;  to  the  second, 
that,  on  the  same  facts,  the  petitioners  ought  to  be  dis- 


iMi 


cliargecl ;  and  to  the  third,  that  the  military  commission 
had  not  jurisdiction  to  try  and  sentence  the  petitioners,  in 
manner  and  form  as  in  the  petition  and  exhibits  is 
stated. 

Thus,  may  it  please  the  Court,  have  I  performed  the 
part  assigned  me  in  the  argument  of  these  cases.  The 
materials  were  abundant.  I  only  fear  that  I  may  have 
wearied  you  with  the  recital  or  erred  in  the  selection.  ,1 
could  not  look  into  the  pages  of  English  law — -I  could 
not  turn  over  the  leaves  of  English  literature — I  could 
not  listen  to  the  orators  and  statesmen  of  Engbind,  with- 
out seeing  everywhere  an  almost  unbroken  denunciation 
of  martial  usurpation,  and  the  declaration  of  the  un- 
doubted right  of  everj^  man,  high  or  low,  to  be  judged 
according  to  the  known  and  general  law^,  by  a  jury  of  his 
peers,  before  the"judges  of  the  land.  And  w^hen  I  turned 
to  the  history,  legal,  political  and  literary,  of  my  own 
country — my  own  undivided  and  forever  indivisible  coun- 
try— I  found  the  language  of  freedom  intensified.  Our 
fathers  brought  with  them  the  liberties  of  Englishmen. 
Throughout  the  colonial  history,  we  find  the  colonists 
clinging,  wdth  immovable  tenacity,  to  trial  by  jury. 
Magna  Charta  and  the  Petition  of  Eight.  They  had 
won  them  in  the  fatherland  in  many  a  high  debate  and 
on  many  a  bloody  field ;  and  they  defended  them  here 
agatnst  the  emissaries  of  the  Crown  of  England  and 
against  the  veteran  troops  of  France.  We,  their  children, 
thought  we  had  superadded  to  the  liberties  of  English- 
men the  greater  and  better  guarded  liberties  of  Ameri- 
cans. 

These  great  questions,  than  wdiich  greater  never  yet 
came  before  this  most  august  of  human  tribunals,  are 
now  to  receive  their  authoritative  and  last  solution.  Your 
judgment  will  live  when  all  of  us  are  dead.  The  robes 
which  you  wear  will  be  worn  by  others,  who  will  occupy 
your  seats,  in  long  succession,  through,  I  trust,  innumer- 
able ages ;  but-  it  will  never  fall  to  the  lot  of  any  to  pro- 
nounce a  judgment  of  greater  consequence  than  this.  It 
wdll  stand,  when  the  statue,  which  with  returning  peace 
we  have  raised  above  the  dome  of  the  Capitol,  shall  have 


97 


fallen  from  its  pedestal,  its  sword  broken,  and  its  shield 
scattered  in  pieces ;  nay,  when  the  dome  itself,  which, 
though  uplifted  into  the  air,  seems  immovable  as  the 
foundation  of  the  earth,  shall  have  crumbled  ;  it  will  stand 
as  long  as  that  most  imperishable  thing  of  all,  our 
mother  tongue,  shall  be  spoken  or  read  among  men. 

That  judgment,  I  hope  and  I  believe,  will  establish  the 
liberty  of  the  citizen  on  foundations  never  more  to  be 
shaken,  and  will  cause  the  future  Iiistorian  of  our  greatest 
struggle  to  write  that,  great  as  were  the  victories  of  our 
war,  they  were  equalled  in  renown  by  the  victories  of  our 
peace. 


APPENDIX. 


I. 

Earl  of  Lancaster's  Case.      ^ 

1  Blacksfone  Com.,  413. 

"  Martial  law,  which  is  built  upon  no  settled  principles, 
but  is  entirely  arbitrary  in  its  decisions,  is,  as  Sir  Mat- 
thew Hale  observes  (Hist.  C.  L.,  c.  2),  in  truth  and  reality 
no  law,  but  something  indulged  rather  than  allowed  as  a 
law.  The  necessity  of  order  and  discipline  in  an  army  is 
the  only  thing  which  can  give  it  countenance  ;  and  there- 
fore it  ought  not  to  be  permitted  in  time  of  peace,  when 
the  king's  courts  are  open  for  all  persons  to  receive  jus- 
tice, according  to  tlie  laws  of  the  land.  Wherefore 
Thomas  Earl  of  Lancaster  being  condemned  at  Ponte- 
fract,  15  Ed.  XL,  by  martial  law,  his  attainder  was  reversed 
1  Ed.  3,  because  it  was  done  in  time  of  peace  (2  Brad. 
App.  59).  And  it  is  laid  down  (3  Inst.  52)  that  if  a  lieu- 
tenant or  other  that  hath  commission  of  martial  autho- 
rity doth  in  time  of  peace  hang  or  otherwise  execute  any 
man  by  colour  of  martial  law,  this  is  murder,  for  it  is 
contrary  to  Magna  Carta  (cap.  29)." 

1  Hale  Pleas  of  the  Croian  (Dogherty's  Ed.  London,  1800), 
pp.  499,  500. 

"  If  in  time  of  peace  a  commission  issue  to  exercise 
martial  law%  and  such  commissioners  condemn  any  of  the 
King's  subjects  (not  being  listed  under  the  military 
power),  this  is  without  all  question  a  great  misprision 
and  an  erroneous  proceeding,  and  accordingly  adjudged 
in  parliament  in  the  case  of  the  Earl  of  Lancaster,  Pari. 
1  Ed,  3. 
1 


2  Appendix, 

IK,  p.  344. 

"  Claus.  1  i7.  3,  part.  1,  m.  21  dors.  Thomas  Earl  of 
Lancaster  was  condemned  to  death,  as  a  traitor  by  Ed- 
ward II.,  at  Pontefract.  Henry,  his  brother,  brought  a 
petition  of  error  in  the  parliament  of  1  E.  3  upon  that 
judgment ;  the  record  was  removed  in  these  words  : 

"  '  Pleas  of  the  Crown  before  our  lord  the  King  Edward, 
son  of  our  lord  the  King  Edward,  held  in  the  presence  of 
our  lord  the  king  himself  at  Pontefract  on  the  day  of 
June  next  before  the  Feast  of  the  Annunciation  of  the 
Blessed  Virgin  Mary,  in  the  fifteenth  year  of  his  reign. 

"  '  Thomas  Earl  of  Lancaster  being  taken  for  treasons, 
homicides,  arsons,  robberies  and  divers  other  felonies, 
and  being  brought  before  our  lord  the  king  himself,  in 
the  presence  of  Edmund  Earl  of  Kent  [and  six  others 
named]  the  barons  and  other  magnates  of  the  king,  our 
lord  the  king,  remembered  that  the  same  Thomas,  a 
liege  man*  of  our  lord  the  king,  came  at  Burton-on- 
Trent,  together  with  Humphrey  de  Bohun,  formerly 
Earl  of  Hereford,  found  to  be  a  traitor  to  the  king  and 
kingdom,  with  colors  flying  at  Boroughbridge,  in  war 
against  our  lord  the  king,  and  there  slain,  and  Roger 
Damory  adjudged  to  be  a  traitor,  and  other  traitors  and 
enemies  of  the  king  and  kingdom,  with  colors  flying, 
and  resisted  and  impeded  in  hostile  force  as  of  war,  for 
the  space  of  three  days,  our  lord  the  king  himself  and 
his  men  and  servants  from  passing  over  the  bridge  of  the 
said  town  of  Burton,  &c.  And  hence,  our  lord  the  king, 
having  respect  to  the  thus  great  crimes  of  said  Earl 
Thomas,  and  his  misdeeds  and  his  great  ingratitude,  had 
no  cause  to  extend  in  the  premises  any  grace  to  the  said 
Earl  Thomas,  to  pardon  him  the  aforesaid  punishments 
adjudged  against  him ;  yet  because  the  same  Earl 
Thomas  was  born  of  an  excellent  and  most  noble  family, 
our  lord  the  king  of  his  regard  for  the  said  family,  of  his 
special  grace  remits  to  the  said  Earl  Thomas  the  execu- 
tion of  two  of  the  punishments  adjudged,  as  aforesaid,  to 
wit :  that  the  same  Earl  Thomas  be  not  drawn  nor  hung, 
but  that  execution  only  be  done  upon  the  same  Earl 
Thomas,  that  he  be  beheaded. 

"  '  Thereupon  the  record  being  read  in  presence  of  our 
lord  the  king,  the  nobles  and  great  men  of  the  kingdom, 
and  others  in  this  parliament,  he  assigned  these  errors  : 
1.  That  there  was  error  in  this  :  that  although  when  any 
liege  man  whatever  of  the  king  be  taken  in  time  of 
peace  for  seditions,  homicides,  robberies,  arsons  and 
other  felonies,  and  be  brought  into  any  court  whatever  of 
our  lord  the  king,  he  ought  for  such  seditions  and  other 


Eiui  of  Lanca-sttr's  Case.  5 

Monies  charged  against  him,  by  th«  law  and  custom  of 
the  kingdom,  to  be  arraigned,  and  put  to  answer,  and 
then  by  the  law,  &g.,  to  be  convicted,  before  he  be  ad- 
judged to  death  ;  yet  the  said  Earl  Thomas,  a  liege  man 
of  our  lord  and  father  the  king,  aforesaid,  &c.,  was  taken 
in  time  of  peace,  and  brought  before  the  king  himself ; 
and  the  said  our  lord  and  father  the  king,  &c,,  remembered 
that  the  same  Thomas  was  guilty  of  the  seditions  and 
other  felonies  in  the  aforesaid  record  contained  ;  without 
this,  that  he  arraigned  him  therefor  or  put  him  to  answer 
as  is  the  custom  according  to  the  law,  &c.,  and  thus,  with- 
out arraignment  and  answer,  the  same  Thomas,  of  error 
and  contrary  to  the  law  of  the  land  was  in  time  of  peace 
adjudged  to  death,  notwithstanding  that  it  is  notorious 
and  manifest  that  the  whole  time  in  which  the  said  mis- 
deeds and  crimes  contained  in  the  said  record  and  pro- 
ceedings were  charged  against  the  said  Earl,  and  also  the 
time  in  which  he  was  taken,  and  in  which  our  said  lord 
and  father  the  king  remembered  him  to  be  guilty,  &c., 
and  in  which  he  was  adjudged  to  death,  was  a  time  of 
peace,  and  the  more  especially  as  throughout  the  whole 
time  aforesaid  the  Chancery  and  other  courts  of  pleas  of 
our  lord  the  king  were  open,  and  in  which  right  was  done 
to  every  man,  as  it  was  used  to  be;  nor  did  the  same  lord 
the  king  in  that  time  ever  ride  with  standard  unfurled ; 
the  said  lord  and  father  the  king,  &c.,  in  such  time  of 
peace  ought  not  against  the  same  Earl  thus  to  have  re- 
membered nor  to  have  adjudged  him  to  death  without 
arraignment  and  answer.  He  says  also  :  2.  That  there 
is  error  in  this,  that  although  the  said  Earl  Thomas  was 
one  of  the  lords  and  magnates  of  the  kingdom,  and  it 
was  contained  in  the  great  charter  of  the  liberties  of 
England  '  that  no  free  man  be  taken,  imprisoned,  or  be 
disseised  of  his  freehold  or  liberties  or  free  customs,  or 
outlawed  or  exiled,  or  any  otherwise  destroyed  ;  nor  will 
our  lord  the  king  23ass  upon  him  nor  condemn  him  but 
by  lawful  judgment  of  his  peers  or  by  the  law  of  the 
land  ;'  the  said  Earl  Thomas,  by  the  record  of  the  king, 
as  is  aforesaid  '  in  time  of  peace '  was  of  erroradjudged  to 
death,  without  arraignment  or  answer  or  lawful  judg- 
ment of  his  peers  against  the  law,  &c.,  and  against  the 
tenor  of  the  said  great  charter;  and  therefore,  as  brother 
and  heir  of  Thomas,  prays  that  the  judgment  be  annulled 
and  he  restored  to  his  inheritance  ;  and  the  aforesaid  re- 
cord and  proceedings,  &c.,  being  seen  and  more  fully 
understood,  for  the  errors  aforesaid  and  others  in  the 
same  record  and  proceedings  found,  therefore,  it  is  con- 
sidered by  our  lord  the  king  himself,  the  lords,  magnates, 


4  Appendix. 

and  all  the  commang  of  the  kingdam  in  this  parh'ament, 
that  the  said  judgment  rendered  against  tlie  said  Thomas^ 
for  error  be  revoked  and  held  for  nought,  and  that  the 
said  Henr^%  as  brother  and  heir  of  the  said  Earl  Thomas, 
be  admitted  to  sue  for  and  have  due  process  hereupon  to 
be  made  as  is  used,  and  have  a  writ  out  of  chancery  ; 
and  that  the  justices  in  whose  pleas  the  said  record  and 
proceedings  are  enrolled  cause  the  same  record  and  pro- 
ceedings to  be  avoided  and  held  for  nought,  ttc'  (P.  15, 
Ed.  2,  B.  E,  Kot,  69,  and  R  39,  Ed,  3,  Kot,  49/coram 
Bege.) 

"  This  notable  record  even  before  the  statute  of  25  Ed, 
3  [the  statute  of  treasons],  gives  us  an  account  of  these 
things  :  1.  That  in  time  of  peace  no  man  ought  to  be  ad- 
judged to  death  for  treason  or  any  other  often se,  without 
being  arraigned  and  put  to  answer,  2.  That  regularly, 
wdien  the  king's  courts  are  open,  it  is  a  time  of  peace  in 
judgment  of  law.  3.  That  no  man  ought  to  be  senten- 
ced to  death  by  the  record  of  the  king  without  his  legal 
trial  per  pares/' 

HumCf  History  of  Englcind,  Ch.  14,  voL  2,  p.  159, 

*'  The  king  had  now  got  the  start  of  the  barons,  an  ad- 
vantage which,  in  those  times,  was  commonly  decisive  ; 
and  he  hastened  with  his  army  to  the  marches  of  Wales, 
the  chief  seat  of  power  of  his  enemies,  whom  he  found 
totally  unprepared  for  resistance.  Many  of  the  barons 
in  tliose  parts  endeavored  to  appease  him  by  submission  ; 
their  castles  were  seized,  and  their  persons  committed  to 
custody,  But  Lancaster,  in  order  to  prevent  the  total 
ruin  of  his  party,  summoned  together  his  vassals  and  re- 
tainers ;  declared  his  alliance  with  Scotland,  which  had 
long  been  suspected  ;  received  the  promise  of  re-enforce- 
ment from  that  country,  under  the  command  of  Eandolf, 
Earl  of  Murray,  and  Sir  James  Douglass  ;  and  being 
joined  by  the  Earl  of  Hereford,  advanced  with  all  his 
forces  against  the  king,  who  had  collected  an  army  of 
thirty  thousand  men,  and  was  superior  to  his  enemies. 
Lancaster  posted  himself  at  Burton-upon-Trent,  and 
endeavored  to  defend  the  passage  of  the  river ;  but 
being  disappointed  in  that  plan  of  operations,  this 
prince,  who  had  no  military  genius,  and  whose  personal 
courage  was  even  suspected,  fled  with  his  army  to  the 
north,  in  expectation  of  being  there  joined  by  his  Scottish 
allies.  He  was  pursued  by  the  king,  and  his  army  di- 
minished daily,  till  he  came  to  Boroughbridge,  where  he 
found  Sir  Andrew  Harcla   posted  with  some  forces  on 


Military  Commissions  of  Chas,  I.  5 

the  opposite  side  of  tlio  rivor,  and  ready  to  dispute  the 
passage  with  him.  He  was  repulsed  in  an  attempt  which 
he  made  to  force  his  way  ;  the  Earl  of  Hereford  was 
killed ;  the  whole  army  of  the  rebels  was  disconcerted  : 
Lancaster  himself  was  become  incapable  of  taking  any 
measures  either  for  flight  or  defence  ;  and  he  was  seized 
without  resistance  by  Harcla  and  conducted  to  the  king. 
In  those  violent  times,  the  laws  were  so  much  neglected 
on  both  sides,  that,  even  when  they  might,  without  any 
sensible  inconvenience,  have  been  observed,  the  con- 
querors deemed  it  unnecessary  to  pay  any  regard  to  them. 
Lancaster,  who  was  guilty  of  open  rebellion,  and  was 
taken  in  arms  against  his  sovereign,  instead  of  being 
tried  by  the  laws  of  his  country,  which  pronounced  the 
sentence  of  death  against  him,  was  condemned  by  a  court 
martial  and  led  to  execution." 


II. 

MiTiTARY  Commissions  of  Chas.  I. 

Rymer's  Foedera  XVI 11.  254. 

"  Chaeles  by  the  Grace  of  God  &c.  To  our  right 
trusty  and  well  beloved  cousin  Edward,  Viscount  Wim- 
bleton.  Lord  Marshall  of  our  Army  and  to  our  trustie  and 
welbeloved  Sir  William  St.  Leger  Knight,  Serjeant  Major 
of  our  Army  [and  23  others]  : 

"  Whereas  upon  the  Eetourne  of  Our  Fleete,  Wee  have 
alreadie  directed  that  non  of  the  Soldiers  imployed  in 
that  Service,  and  which  shall  retourne  in  any  of  those 
Shipps  shall  be  disbanded  or  departe  from  their  Colours, 
but  shall  continue  under  the  Commaund  of  those  under 
whom  they  then  served.  Wee  having  present  occasion  to 
use  their  Services  again,  and  yet  Wee  shall  be  inforced 
for  a  time  to  lodge  and  billett  the  said  Soldiers  in  severall 
Places  in  and  about  Our  Towne  of  Plymouth  and  in  Our 
Counties  of  Devon  and  ComeivaU  where,  with  most  Con- 
venience for  the  Soldiers  and  least  Trouble  to  the 
Countrey  itt  may  be  best  performed,  untill  Wee  shall 
have  Opportunitie  to  ymploye  them,  which  We  intend  to 
doe  with  all  Expedition  ;  And  to  the  end  that  all  Dis- 
orders and  Outrages,  to  the  Disturbance  of  Our  Peace 
and  the  Prejudice  of  our  loveing  Subjects  may  be  tymely 


6  Appendix. 

prevented,  Wee  being  more  desireous.  to  keepe  Our 
People  from  doeing  Miscliiefe  than  to  have  cause  to 
punish  them  for  doeing  the  same  : 

"  Have,  of  the  speciall  Trust  and  Confidence  We  have 
reposed  in  your  approved  Wisdomes  and  Fidelities, 
appointed  you  to  be  our  Commissioners  and  by  tlieis 
Presents  doe  give  unto  you  or  any  three  or  more  of  you, 
full  Power  and  Authoritie  in  all  Places  within  Our  said 
Counties  of  Devon  and  Cormvall  and  either  of  them,  as 
well  within  the  said  Town  of  Plymouth  or  anie  other 
Towne  Libertie  or  Place  as  without,  within  Our  said 
Counties  of  Devon  and  Cornwall  or  either  of  them,  to 
proceede  according  to  the  Justice  of  Marshall  Lawe 
against  such  Soldiers  or  other  dissolute  Persons  joining 
with  them  or  anie  of  them,  as  dureing  such  Time  that 
anie  of  our  said  Troopes  or  Companies  of  Soldiers  shall 
remayne  or  abyde  thereabouts,  and  not  be  transported 
thence,  shall  within  any  the  Places  or  Precincts  aforesaid 
att  anie  Time  after  tbe  Publication  of  this  Our  Commis- 
sion, committ  any  Robberies,  Felony es,  or  Mutynies,  or 
other  Outrages  or  Misdemeanors,  which  by  Marshall 
Lawe  should  or  ought  to  be  punished  with  Death,  and  by 
such  summarie  Course  and  Order  as  is  agreeable  to  Mar- 
shall Lawe,  and  is  used  in  Armies  in  tyme  of  Warres,  to 
proceed  to  the  Triall  and  Condempnation  of  such  Delin- 
quents and  Offendors,  and  them  to  cause  to  be  executed 
and  putt  to  Death  according  to  the  Lawe  Marshall  for  an 
Example  of  Terror  to  others,  and  to  keepe  the  rest  in  due 
Awe  and  Obedience. 

"  To  which  Purpose  Our  Will  and  Pleasure  is  that  you 
cause  to  be  erected  such  Gallowes  and  Gibbetts,  and  in 
such  Places  Avithin  the  said  Counties  or  either  of  them, 
as  you  shall  think  fitt,  and  thereupon  to  cause  the  same 
Offenders  to  be  executed  in  open  View,  that  others  may 
take  warning  thereby  to  demeane  themselves  in  such  due 
Order  and  Obedience  as  good  Subjects  ought  to  do, 
straightlie  chargeing  and  commaunding  all  Mayors,  Sher- 
iffs, Justices  of  Peace,  Constables,  Bayliffs  and  other 
Officers,  and  all  other  Our  loveing  Subjects  whatsoever 
upon  their  Allegiance  to  Us  and  Our  Crowne,  to  be  be 
{sic)  ay  ding  and  assisting  to  you  or  such  three  or  more  of 
you  as  aforesaid  in  the  due  Execution  of  this  Our  Royall 
Commaundment,  and  theis  Presents  shal  be  unto  you  and 
everie  of  you  sufficient  Warrant  and  Discharge  for  the 
doeing  and  executing  and  causing  to  be  done  and  exe- 
cuted all  and  everie  such  Act  and  Acts,  Thing  and 
Things  as  anie  three  or  more  of  you  as  aforesaid  shall 
find  requisite  to  be  done  concerning  the  Premises. 


Extracts  from  the  Petition  of  Right.  7 

"  In  Witnes  whereof  ^fec. 
Witnes,  &c 

Teste  Eege  Apud  Hampton  Court  vicesimo 
octavo  Die  Decembris. 

Per  Breve  cle  Privato  SIgilJo,  d'c. 
A.  D.  1625." 

//;.,  763. 

Similar  Commission  "  to  proceed  according  to  the 
Justice  of  Martiall  La  we  against  sucli  Soldiers  or 
Marriners,  or  other  dissolute  Persons  joyneing  with 
them  or  any  of  them  as  within  the  said  County  [of  Kent] 
or  any  Parte  thereof,  shall  at  any  tyme  after  the  Publi- 
cation of  this  Our  Commission  committ  any  Bobbery, 
Felony,  Mutiny  or  other  Outrage  or  Misdemeanour  or 
which  shall  withdrawe  themselves  from  their  Places  of 
Service  or  Charge  as  aforesaid  or  shal  be  found  within 
the  said  Countie  or  any  Parte  thereof,  wdiich  by  the 
Martiall  Lawe  should  or  oughte  to  be  punished  with 
Death  and  by  such  summary  Course  "  &c  nt  supra. 

"  Witnes  Our  Selfe  at  Canbury  the  fourth  day  of 
October  [1626J.     Per  ipsum  Regtm." 


III. 

Extracts  feom  the  Petition  of  Right. 

The  Petition  of  Bight  (5  Statutes  of  the  Realm,  fol.  24), 

'•  Whereas  also  by  authority  of  Parliament  in  the  25th 
year  of  the  reign  of  King  Edward  III.,  it  is  declared  and 
enacted,  That  no  man  shall  stand  fore-judged  of  life  or 
limb  against  the  form  of  the  Great  Charter  and  the  laws 
and  statutes  of  this  Realm  ;  And  by  the  said  Great 
Charter  and  other  the  laws  and  statutes  of  this  your 
Realm,  no  man  ought  to  be  adjudged  to  death  but  by 
the  laws  established  in  this  your  Realm,  either  by  the 
customs  of  the  same  realm  or  by  acts  of  Parliament ; 

*'  Whereas  no  offender  of  what  kind  soever  is  exempted 
from  the  proceedings  to  be  used,  and  punishments  to  be 
inflicted  by  the  laws  and  statutes  of  this  your  Realm  ; 
Nevertheless  of  late,  divers  Commissions,  under  your 
Majesty's  great  Seal,  have  issued  forth,  by  which  certain 
persons  have  been  assigned  and  appointed  Commissioners 
with  power  and  authority  to  proceed,  wdthin   the  land, 


8  Appendix. 

nccording  to  the  justice  of  murtwl  J<nr,  against  such  sol- 
diers and  mariners,  or  other  dissohite  persons  joining 
with  them,  as  should  commit  any  murder,  robbery,  felony, 
mutiny,  or  other  outrage,  or  misdemeanor  whatsoever  ; 
and  by  such  summarj^  course  and  order  as  is  agreeable 
to  martial  law,  and  is  used  in  armies  in  time  of  war,  to 
proceed  to  the  trial  and  condemnation  of  such  offenders, 
and  them  to  cause  to  be  executed  and  put  to  death 
according  to  the  law  martial  : 

*'  By  pretext  whereof  some  of  your  majesty's  subjects 
have  been  by  some  of  the  said  Commissioners  put  to 
death,  when  and  where  if  by  the  laws  and  statutes  of  the 
land  they  had  deserved  death,  by  the  same  laws  and  sta- 
tutes also  they  might  and  by  no  other  ouglit  to  have  been 
judged  and  executed  : 

"  And  also  sundry  grievous  offenders  by  color  thereof 
claiming  an  exemption  have  escaped  the  punishment  due 
to  them  by  the  laws  and  statutes  of  this  your  realm,  by 
reason  that  divers  of  your  officers  and  ministers  of  jus- 
tice have  unjustly  refused  or  forborn  to  proceed  against 
such  offenders  according  to  the  same  laws  and  statutes, 
upon  pretence  that  the  said  offenders  were  punishable 
only  by  martial  law,  and  by  authority  of  such  commis- 
sions as  aforesaid  ;  which  commissions  and  all  other  of 
like  nature  are  wholly  and  directly  contrary  to  the  said 
laws  and  statutes  of  this  your  realm  : 

*'  They  do  therefore  humbly  pray  your  most  excellent 
majesty  ^  ^  ^  {^j^g^^l;  ^i^q  aforesaid  commis- 
sions for  proceeding  by  martial  law  may  be  revoked  and 
annulled  ;  and  that  hereafter  no  commissions  of  like 
nature  may  issue  forth  to  any  person  or  persons  whatso- 
ever to  be  executed  as  aforesaid,  lest  by  color  of  them 
any  of  your  majesty's  subjects  be  destroyed  or  put  to 
death  contrary  to  the  laws  and  franchise  of  the  land." 

"  The  petition  was  read,  and  then  the  clerk  read  this  an- 
swer :  '  Soit  droit  fait  comme  il  est  desire.'  "  (8  Pari. 
Hist.  202,  7th  June,  1628.) 


IV. 


English  Acts  suspending  the  Privilege  of  the  Writ 
OF  Habeas  Corpus. 

Lid  of  English  Acts  "  to  empower  his  Majesty  to  se- 
cure and  detain  such  persons  as  his  Majesty  shall 


Eng.  Acts  suspending  Prlv.  of  Writ  of  Habeas  Corpus.      9 

suspect  are  conspiring  against  his  Majesty's  person 
or  government." 

1  W,  and  M,  St.  1,  Ch.  7,  19. 
7  and  8  W.  3,  Ch,  11. 
6  Anne,  Ch.  15. 

I  Geo.  1,  Ch.  8,  30. 
17  "     2,  Ch.  6. 

19  ''  "  "  1. 

17  "  3,  "  9. 

34  "  "  "  54 

35  ''  "  ''  1. 

38  "     "     "     36. 

39  ''     "     "    44. 

39  and  40  Geo.  3,  Ch.  32. 
41  Geo.  3,  Ch.  J6. 

57  Geo.  3,  Ch.  3  and  55,  p.  193  (which  see 
below). 

II  and  12  Yict.,  Ch.  35. 

These  acts  are  generally  in  the  form  of  which  the  fol- 
lowing (57  Geo.  3,  Ch.  55)  is  a  specimen  : 

"  An  act  to  continue  an  act,  to  empower  his  Majesty  to 
secure  and  detain  such  persons  as  his  Majesty  shall 
suspect  on  conspiring  against  his  person  and  gov- 
ernment (30th  June,  1817)." 

§  1.  Enacts  that  "  all  or  any  person  or  persons,  that 
are  or  shall  be  in  prison,  w^ithin  that  part  of  the  United 
Kingdom  called  Great  Britain,  at  or  upon  the  day  on 
which  this  act  shall  receive  his  Majesty's  royal  assent,  or 
after,  b}"  warrant  of  his  said  Majesty's  most  hon.  privy 
council,  signed  by  six  of  the  said  privj^  council,  for  high 
treason,  suspicion  of  treason  or  treasonable  practices,  or 
by  w^arrant  signed  by  any  of  his  Majesty's  Secretaries  of 
State,  for  such  causes  as  aforesaid,  may  be  detained  in 
safe  custody  without  bail  or  mainprize,  until  the  1st  day 
of  March,  1818,  and  that  no  judge  or  justice  of  the  peace 
shall  bail  or  try  any  such  person  or  persons  so  committed, 
without  orders  from  his  said  Majesty's  privy  council, 
signed  by  six  of  the  said  privy  council,  until  the  first  day 
of  March,  1818,  any  law  or  statute  to  the  contrary  not- 
withstanding. 

§  2.  "  That  the  act  made  in  Scotland,  in  the  year  of 
our  Lord,  1701,  intitled  an  act  for  preventing  wrongous 
imprisonment,  and  against  undue  delays  in  trials,  in 
so  far  as  the  same  may  be  construed,  to  relate  to  the 
cases  of  treason,  and  suspicion  of  treason,  with  rope  ct  to 
2 


10  Appendix, 

persons  so  committed  as  aforesaid,  be  suspended  until 
the  first  day  of  March,  1818,  and  until  '  said  day  '  no 
judge,  justice  of  the  peace,  or  other  officer  of  the  law  of 
Scotland,  shall  liberate,  try,  or  admit  to  bail,  any  person 
or  persons  that  is,  are,  or  shall  be  in  prison  in  Scotland, 
under  a  waiTant  or  warrants,  signed  as  aforesaid,  for  such 
causes  as  are  aforesaid,  without  orders  from  his  said  Ma- 
jesty's privy  council,  signed  by  six  of  the  said  privy 
council 

§  3.  "  Provided  always,  that  from  and  after  the  first 
day  of  March,  1818,  the  said  persons  so  committed,  shall 
have  the  benefit  and  advantage  of  all  laws  and  statutes 
in  any  way  relating  to,  or  providing  for  '  the  liberty  of  the 
subjects  of  this  realm,'  '* 

Act  for  lrekmd.~The  11  and  12  Vict.,  CL  36,  p.  165,  25th 
July,  1848,  provides  that  : 

§  1.  Persons  imprisoned  in  Ireland  at  the  date  of  this 
Act  or  after,  by  warrant  of  six  privy  councillors,  "for  high 
treason,  or  treasonable  practices,  or  suspicion  of  high  trea- 
son or  treasonable  practices,"  may  be  "  detained  in  safe 
custody  without  bail  or  main  prize,  until  March  1st,  1849," 
and  not  to  be  bailed  or  tried  without  order  of  the  Irish 
privy  council,  until  March  1st,  1849. 

§  2.  The  persons  to  whom  such  warrants  are  directed 
shall  detain  such  persons,  as  lawful  prisoners. 


T. 

Geoffeoy's  Case,  in  Fkance, 

Cozirt  of  Cassation,  June  29tk,  1832  (24  Journal  du  Palais, 
p.  1218,  seqq). 

"  The  laivs  and  decrees  in  regard  to  creating  a  state  of 
siege,  must  he  carried  into  execution  in  cdl  points  not  con- 
trary to  the  Constitutional  Charter. 

"  But  Art.  103,  Decree  of  24:  Dec.  1811,  being  irreconcileahle 
icith  Art  53  and  54  of  the  Charter  of  1830,  placing  a  city  in 
a  state  of  siege,  cannot  have  the  effect  of  conferring  jurisdic- 
tion on  military  commissions  (conseils  de  guerre)  over  persons 
tvho  are  not  in  the  army,  nor  impressed  ivith  a  military 
character.     Laio  22  Messidor,  year  IV,  Art.  1. 

"  Geoffroy  vs.  Le  Ministeee  Public. 
"  A  royal  order  dated  June  6th,  1832,  had  put  Paris  in 
a  state  of  siege  ;  it  was  based  on  the  necessity  of  repress- 


Geoffroy^s  Case^  in  France,  11 

ing  seditious  assemblages  wliich  bad  appeared  in  arms  in 
the  capital,  during  the  days  of  June  5th  and  6th  ;  on 
attacks  upon  public  and  private  property ;  on  assassina- 
tions of  national  guards,  troops  of  the  line,  municipal 
guards  and  officers  in  the  public  service  ;  and  on  the  ne- 
cessity of  prompt  and  energetic  measures  to  protect  pub- 
lic safety  against  the  renewal  of  similar  attacks. 

"  The  Cour  Eoyale,  called  to  meet  in  extra  session  by 
order  of  the  first  president,  to  pass  by  way  of  review 
{evocation)  or  otherwise,  upon  the  political  occurrences 
of  the  5th  and  6th  of  June,  rendered  the  following  judg- 
ment on  the  7th  of  June,  all  the  chambers  being  united  : 
On  hearing  the  Procureur  General  on  his  motion,  decid- 
ing on  the  proposition  of  one  of  its  members  to  cause  to 
be  transmitted  for  review,  the  record  relative  to  criminal 
acts  committed  on  the  5th  and  6th  of  the  present  month  ; 
Whereas,  by  the  order  dated  yesterday,  the  city  of  Paris 
has  been  placed  in  a  state  of  siege,  and  wdiereas,  by  the 
terms  of  Art.  101,  of  the  Decree  of  Dec.  24,  1811,  passed 
to  carry  out  the  laws  of  July  8,  1791,  and  10th  Fructidor, 
year  Y,  the  effect  thereof  is  to  transfer  to  the  military 
commandant,  the  power  vested  in  the  civil  judges  for  the 
maintainance  of  order  and  police- 

" '  And  whereas,  the  occurrences  which  occasioned  the 
placing  of  the  City  of  Paris  in  a  state  of  siege,  must  be 
subjected  to  this  rule  of  law,  although  anterior  thereto : 

"  '  It  is  declared  that  no  ground  for  a  review  exists'. 

"  The  publicity  encountered  by  this  decision  raised  the 
question  of  the  constitutionality  of  the  order,  and  the  no 
less  weighty  question  of  the  jurisdiction  of  military  com- 
missions over  acts  done  and  ended  before  the  order  de- 
claring the  state  of  siege  was  inserted  in  the  Moniteur 
and  the  Bulletin  des  Lois, 

"  As  early  as  June  10th,  the  Gazette  des  Trihunaux 
published  a  carefully  considered  opinion  on  these  points 
by  Mo.  Ledru  Eollin,  of  the  Paris  bar.  The  ball  thus 
being  opened,  the  opposition  press  soon  after  collected 
the  opinions  of  several  notabilities  of  the  order  of  advo- 
cates of  the  Court  of  Cassation,  and  the  concurring  opin- 
ions of  a  number  of  the  bars  of  the  kingdom.  All  these 
opinions  increased  the  arguments  against  the  constitu- 
tionality of  the  order,  its  retroactive  force,  and  the  juris- 
diction of  military  commissions. 

"  The  military  commissions  having  taken  cognizance 
of  the  cases,  the  successive  defendants  at  their  bar  ex- 
cepted in  vain  to  their  jurisdiction.  The  exceptions  were 
-entered  of  record,  saving  the  right  to  pass  upon  them  in 
deciding  upon  the  merits.    But  it  must  be  noted  that  this 


12  Aypemlix. 

answer  to  the  exception  on  the  ground  of  want  of  jnrisclic^ 
tion,  did  not  afford  a  decision  on  the  exceptions.  Accord- 
ing to  the  law  of  the  13th  Brnmaire,  year  V,  which  pre- 
scribes the  procedure  to  be  pursued  before  military  commis- 
sions, the  latter  must  give  judgment  without  adjournment ; 
military  judges  are  both  judges  and  juries  ;  they  have  but 
one  question  to  answer,  (Art.  30^  of  the  law  cited)  :  'Is  N., 
the  accused,  guilty?'  Being  thus  bound  under  the  law 
which  created  them,  by  the  double  dut}^  of  giving  judg- 
ment without  adjournment,  and  of  answering  a  complex 
question,  the  question  of  their  jurisdiction  could  not  be  ex- 
plicitly decided  by  the  jnilitary  commissions  themselves  ; 
judgments  of  not  guilty  left  the  point  vaguely  undecided  ; 
on  the  other  hand  the  counsel  for  the  defence  being  un- 
able after  discussing  it,  to  avoid  a  discussion  of  the  merits 
without  putting  the  fate  of  the  accused  in  jeopardy,  re- 
lied upon  the  exercise  of  the  discretionary  power  which 
might  be  adopted  by  military  judges  from  the  new  law, 
permitting  juries  to  put  questions  upon  trials  for  the  pur- 
pose of  discovering  extenuating  circumstances. 

"  However,  more  than  one  capital  sentence  was  pro- 
nounced. Among  the  accused,  Michael  Augustus  Geof- 
frey,  designer,  of  Paris,  was  by  a  decision  of  the  second 
military  commission  of  Paris,  on  the  18th  of  June,  by  a 
majority  of  6  to  1,  declared  guilty  of  an  attack  with  in- 
tent to  subvert  the  government  and  to  excite  civil  war. 
He  was  consequently  condemned  to  death,  in  accordance 
with  Art.  87,  89  and  91,  of  the  Penal  Code  and  the  law  of 
iHth  Germinal,  year  YI. 

"  Geoffroy  immediately  appealed  to  the  Council  of  Pie- 
vision  and  the  Court  of  Cassation." 

[The  latter  court  made  an  interlocutory  order  that  the 
record  should  be  brought  into  their  clerk's  office  to  await 
their  further  judgment.  This  having  been  done  and  the 
reporting  counsellor  having  stated  the  question  raised, 
M.  Odilon  Barrot,  of  counsel  for  the  appellant,  stated 
and  argued  three  propositions  as  the  grounds  of  his  ap- 
peal, as  follows  :] 

1st.  "  Placing  the  City  of  Paris  in  a  state  of  siege  by  a 
mere  Order,  when  the  city  has  not  been  invested  and  the 
communications  have  not  been  interrupted  is  an  illegal  act, 
and  deemed  not  to  exist.  2d.  In  case  the  state  of  siege 
be  considered  legal  and  constitutional,  it  is  impossible 
that  it  should  result  in  withdrawing  citizens  from  their 
natural  judges  and  in  obliterating,  as  regards  them,  the 
53d  and  54th  Articles  of  the  Charter." 

[The  third  point  related  to  the  retroactive  effect  of  the 
Order.] 


Geoffroys  Cki.se,  in  France.  13 

"  1st.  How  is  the  question  in  this  case  to  be  stated  ? 
Can  any  one  ask  whether  the  government  is  authorized 
to  despoil  its  citizens  of  the  guaranties  of  a  jury,  not  only 
for  ordinary  misdemeanors  but  even  for  violations  of  the 
laws  of  the  press  ?  This  would  be  doing  violence  to  the 
Charter  which  establishes  trial  by  jury.  Will  any  one 
put  the  question  thus:  Is  the  City  of  Paris  besieged? 
This  would  be  doing  violence  to  common  sense.  Where, 
I  ask,  are  the  rebels  investing  the  city  and  putting  it  in 
a  state  of  siege  ?  Are  not  the  communications  unob- 
structed ?  No,  the  city  is  not  besieged  ;  there  is  no  state 
of  siege  ;  the  siege  is  a  fiction  ;  this  fiction  is  not  lawful. 

"  2d.  The  laws  of  Prairial,  year  III,  and  Ventose,  year 
IV, are  those  on  wliich  the  pretended  jurisdiction  of  military 
commissions  is  founded.  A  military  commission,  it  is  said, 
is  not  an  extraordinary,  special  tribunal.  It  is  a  perma- 
nent court.  This  assertion  is  refuted  by  the  statutes  and  de- 
cisions. The  laws  of  the  years  III  and  IV,  were  re-cast  and 
re-enacted  by  the  law  of  Pluviose,  year  IX,  which  created 
special  tribunals,  and  subsequently  by  that  of  1815, 
which  created  provost's  courts  as  a  part  of  the  ordinary 
administration  of  justice.  This  has  been  distinctly  de- 
cided by  the  Court  of  Cassation  in  the  cases  of  military 
emissaries  and  spies  ;  of  enticements  to  desert ;  of  high- 
way robbers  ;  and  of  all  persons  brought  within  the  scope 
of  the  laws  conferring  special  jurisdiction.  I  add,  that 
according  to  these  laws,  the  decisions  of  this  court  did 
not  bring  within  the  jurisdiction  of  military  courts  such 
individuals  as  were  prosecuted  for  having  formed  a  part 
of  an  armed  assemblage,  except  in  those  cases  where  they 
were  taken  in  the  assemblage  itself. 

"  Therefore,  as  regards  the  persons  placed  by  the 
events  of  June  in  the  hands  of  the  executive,  some  excep- 
tional, extraordinary  jurisdiction  was  required,  and  it  is 
this  very  jurisdiction  which  the  58d  and  54th  articles  of 
the  Charter  have  banished  never  to  return.  Listen  to  M. 
Dupin  commenting  on  these  articles  from  the  rostrum  : 
'  In  order  to  prevent  every  possible  abuse,  we  have  added 
to  the  former  text  of  the  Charter  '  under  Avhat  name  or 
denomination  soever  ;'  for  specious  names  have  never  been 
wanting  for  bad  things,  and  without,  this  precaution  the 
title  of  'ordinary  tribunal'  might  be  conferred  on  the  most 
irregular  and  extraordinary  of  courts.'  This  is  the  prin- 
ciple which  was  applied  in  the  ordinance  of  1830,  relating 
to  juries  in  Corsica.  This  ordinance  declares  that  the 
acts  of  the  government  which  had  created  in  Corsica — 
not  a  military  tribunal  but — a  supreme  court,  an  ordinary 
jurisdiction,  created  by  a  senatus-consultum,  confirmed 


14  A^jpemJlx. 

by  clivers  decrees,  and  sanctioned  bj  a  crowd  of  deci- 
sions, be  and  remain  abrogated.  Then,  if  the  jurisdiction 
of  judges  for  life,  surrounded  by  guaranties,  deciding 
with  the  solemnity  of  ordinary  justice,  has  been  consi- 
dered extraordinary,  what  shall  military  commissions  be 
called,  which  decide  without  adjournment,  as  soon  as  the 
case  is  before  them,  without  any  body  similar  to  a  grand 
jury  having  first  declared  the  existence  of  the  indictment, 
which  decides  without  confronting  witnesses,  without  a 
challenge,  and  whose  judgments  are  executed  withiu 
twenty-four  hours  ?  The  most  enormous  of  exceptions, 
the  most  monstrous  of  special  jurisdictions  is  a  court 
which  judges  a  non-military  person  by  accidental  au- 
thority. This  tribunal,  to  use  the  epithet  of  the  decree 
of  the  Convention  of  the  28th  Thermidor,  year  III,  can 
render  nothing  but  revolutionary  judgments  ;  judgments 
which,  by  returning  to  true  principles,  were  declared  null 
and  void  by  the  Convention  itself. 

"  It  is  objected  that  the  special  laws  concerning  states 
of  siege  have  survived  the  Charter,  and  that  they  compel 
the  establishment  of  military  justice.  No  ;  even  putting 
aside  the  Charter  of  1830,  there  is  no  law^  which,  within  the 
land,  and  excepting  the  case  of  an  investment,  permits  a 
military  chief  to  place  a  people  beyond  the  pale  of  their 
constitutional  guaranties.  There  are  three  laws  which  re- 
late to  a  state  of  siege,  that  of  1791 ,  that  of  the  vear  V,  and 
the  Decree  of  Dec.  24th,  1811.  The  law  of  1791  provides 
w^hat  shall  be  done  as  regards  places  of  strength,  in  the 
three  situations  in  which  they  may  be  placed  ;  peace, 
war,  siege  ;  it  derogates  in  no  respect  from  the  Constitu- 
tion of  1791,  according  to  which  no  person  can  be  accu- 
sed or  condemned  except  in  virtue  of  a  declaration  of  a 
jury  on  the  facts,  and  of  judges  on  the  law.  The  law  of 
the  17th  Fructidor,  year  V,  fills  a  void  in  the  law  of  1791; 
it  provides  for  the  case  where  a  place  of  strength  in  the 
interior  should  be  in  an  analogous  position  to  that  of  a 
place  of  strength,  that  is,  invested  by  forces  of  the  ene- 
my, or  by  rebels.  How  is  it  possible  to  make  out  of  a  war 
measure,  a  measure  of  public  safety ;  a  measure  of  sus- 
pending the  constitution,  and  of  creating  a  dictatorship 
towering  above  thi3  institutions  of  the  country?  Can 
any  one  at  this  day,  give  the  name  of  law  to  an  act 
which  sanctioned  the  18th  of  Fructidor,  and  the  establish- 
ment of  renewed  proscriptions?  As  to  the  decree  of  1811 ; 
that,  in  its  letter,  and  in  its  spirit,  was  no  measure  of  pub- 
lic safety,  but  an  act  of  military  police  prescribing  a  rule 
in  regard  to  places  of  strength  ;  this  decree  has  perished 
like  all  exceptional  measures,  by  which  the  head  of  the 


Geoffroys  Case,  in  France.  15 

government  had  arrogated  to  himself  the  power  of  modi- 
fying the  Constitution  ;  it  was  one  of  the  causes  of  his 
downfall." 

[The  public  prosecutor  replied  to  the  first  ground  taken 
by  the  defence,  as  follows  :J 

'^  ^''  "  ^'  "  The  right  to  declare  a  state  of  siege 
is  confided  exclusively  to  the  chief  magistrate,  or  the 
executive  power  ;  to  the  king,  under  the  responsibility  of 
his  ministers,  by  the  law  of  1791  ;  to  the  executive  direc- 
tory by  the  laws  of  the  year  V,  under  the  duty  of  inform- 
ing the  legislative  body,  which,  at  that  time,  was  to  be  in 
permanent  session  ;  to  the  emperor  by  the  decree  of  1811 ; 
in  a  word,  always  to  the  executive  power,  as  governed  by 
the  necessities  of  the  case  and  the  law  of  public  safety, 
and  solely  capable  of  appreciating  the  demand  for  the 
measure." 

1  To  the  second  ground  :] 

"  "  ^^"  "  "  Yfhat  is  the  character  and  nature 
of  the  Charter  ?  It  is  the  usual  and  ordinary  constitu- 
tion of  the  country,  the  basis  of  our  public  law.  What  is 
a  state  of  siege  ?  A  violent,  extraordinary  state  of  things 
based  upon  the  necessity  of  defence,  and  of  providing  for 
the  common  safety,  attacked  or  threatened  to  be  attacked 
by  a  war,  or  aggression  of  some  kind.  At  such  a  time 
ordinary  misdemeanors  and  crimes  may  become  military 
misdemeanors  and  crimes,  subject  to  the  laws  of  war,  and 
triable  by  its  courts.  The  authority  of  mihtary  commis- 
sions is  therefore  necessarily  connected  with  a  state  of 
siege.  Without  it  a.  state  of  siege  would  be  nothing  but 
an  abstraction  ;  the  laws  which  govern  it  belong  to  a 
state  of  things  entirely  outside  of  ordinary  law\  The  53d 
and  54th  x^rticles  of  the  Charter  are  cited  against  us. 
Art.  53  merely  reproduces  Art.  62  of  the  Charter  of  1814, 
and  it  has  alw^ays  been  held  that  the  '  natural  judges'  of 
a  person  accused,  are  those  fixed  by  the  law  for  the  case 
or  person  to  be  judged.  Art.  54  strengthens  the  prohi- 
bition contained  in  Art.  53.  But,  in  the  first  place,  per- 
manent military  commissions  are  not  extraordinary  com- 
missions, newly  and  specially  created  for  specific  cases  ; 
they  are  recognized  by  a. course  of  legislation  ;  they  are 
not  abolished  by  the  Charter.  This  has  been  held  seve- 
ral times  by  this  court  under  the  Charter  of  1830,  as  well 
as  that  of  1814.  These  tribunals  are  not  an  exception  to 
the  usual  order  of  things,  they  are  the  usual  rule  of  a 
different  order  of  things.  The  Charter  did  not,  and  could 
not  provide  for  a  state  of  siege  ;  and  never  intended  that 
the  government  should  stand  disarmed,  wdiere  circum- 
stances have  once  showed   the  necessity  of  this  excep- 


16  Ajspi'ndix, 

tional  state,  outside  of  ordinary  law.  It  follows  that  mili- 
tary commissions  do  not  take  cognizance  by  force  of  the 
order  of  the  6th  of  June,  but  as  a  consequence  of  the 
state  of  siege,  and  because  military  tribunals  belong  to 
ti  state  of  siege,  and  are  the  usual  judges,  recognized  as 
such  by  law,  in  cases  by  which  this  state  is  created  and 
constituted,  which  is  not  the  normal  state  provided  for 
by  the  Charter." 

[On  the  '29tli  of  June  the  Court  gave  judgment  as  fol- 
lows :  I 

'•  Ptr  Car.  (After  advisement  in  the  council-chamber). 
Whereas  neither  the  Charter  nor  any  subsequent  law 
treats  of  the  laws  and  decrees  which  govern  a  state  of 
siege,  and  whereas  these  laws  and  decrees  must  therefore 
be  carried  into  execution  in  all  points  not  contrary  to  the 
Charter  ;  having  considered  the  Art.  77,  L.  27  Yentose, 
year  VIII,  in  these  words  :  '  No  appeal  can  be  taken 
against  final  judgments  of  jugts  de  paix,  except  for  want 
of  jurisdiction  or  for  exceeding  the  same,  nor  against  the 
judgments  of  military  tribunals  of  land  and  sea,  except 
for  the  said  causes,  taken  by  a  citizen  not  in  the  army 
and  not  impressed  by  law  with  a  military  character  by 
reason  of  his  duties  ;'  Art.  1,  L.  22  Messidor,  year  IV,  as 
follows  :  '  No  crime  is  military,  unless  committed  by  a 
person  forming  a  part  of  the  army  ;  no  other  person  can 
be  brought,  as  a  defendant,  before  judges  appointed  by 
military  law  ;'  Art.  53,  51  and  56  of  the  Charter  :  '  No 
person  can  be  withdrawn  from  his  natural  judges.'  '  Con- 
sequently extraordinary  commissions  and  tribunals  can- 
not be  created  under  what  title  or  name  soever.'  '  The 
institution  of  juries  is  continued  ;'  Art.  69  which  extends 
the  cognizance  of  juries  to  crimes  of  the  press,  and  poli- 
tical crimes,  and  the  law  of  October  8, 1831,  which  defines 
political  crimes  ;  Art.  103,  Decree  of  December  24,  1811, 
as  follows  :  '  As  regards  all  crimes  the  cognizance  of 
which  the  commandant  has  not  decreed  fit  to  be  left  to 
the  ordinary  courts,  the  duties  of  officers  of  judiciary 
police  are  performed  by  a  military  provost,  chosen  as  far 
as  possible  from  the  officers  of  gendarmerie,  and  the  or- 
dinary courts  are  repLaced  by  the  military  courts  ;'  and 
whereas  this  provision  is  irreconcileable  with  the  letter 
and  the  spirit  of  the  above  cited  articles  of  the  Charter  ; 
and  whereas  military  commissions  are  ordinarj^  tribunals 
solely  for  the  judging  of  crimes  committed  by  the  military 
or  persons  impressed  by  law  with  a  military  character,  and 
become  extraordinary  tribunals  when  they  extend  their 
jurisdiction  to  crimes  or  misdemeanors  committed  by 
non-military  citizens  ;  and  whereas  Geoffroy,  brought  be- 


Geoffroffs  Case,  in  France.  17 

fore  the  2d  military  commission  of  the  first  Military  Divi- 
sion, is  neither  in  the  array  nor  impressed  with  a  military 
character,  yet  nevertheless  said  tribunal  has  implicitly 
declared  itself  to  have  jurisdiction  and  passed  upon  the 
merits,  wherein  it  has  committed  an  excess  of  power, 
violated  the  limits  of  its  jurisdiction  and  the  provisions 
of  Art.  53  and  54  of  the  Charter,  and  those  of  the  laws 
above  cited  :  On  these  grounds,  the  court  reverses  and 
annuls  the  proceedings  instituted  against  the  appellant 
before  the  said  commission,  whatsoever  has  followed 
therefrom  and  esp.^cially  the  judgment  of  condemnation 
of  the  18th  Juno,  instant.  And  in  order  that  further  pro- 
ceedings be  had  according  to  law,  remands  him  before 
one  of  the  judges  of  instruction  of  the  court  of  first  in 
stance  of  Paris,"  &c. 


Supplement  a  la  Ripsrtoire  dn  Journal  du  Palais  (1857), 
vol.  L,  p.  101,  Art.  50,  54,  55. 

"  The  questions  of  jurisdiction,  etc.,  discussed  in  1832, 
arose  again  in  consequence  of  the  events  of  June,  1848, 
and  new  appeals  were  taken  to  the  Court  of  Cassation ; 
the  Court  was  no  longer  confronted  by  the  Charter  of 
1830,  and  this  time  declared  that  military  commissions 
had  jurisdiction  to  try  persons  though  not  of  the  army, 
accused  of  having  taken  part  in  the  insurrection  of  June, 
1848.     {Journ.  du  P(dais,  vol.  /.,  1850,  p.  223.) 

"  Art.  106  of  the  Constitution  of  1848,  for  the  purpose 
of  putting  end  to  all  judicial  controversies  as  to  the  le- 
gality of  a  state  of  siege  and  its  consequences,  declared 
that  a  law  should  be  passed  to  fix  the  cases  in  which  a 
state  of  siege  might  be  declared  and  determined  at  the 
same  time  the  forms  and  effects  of  this  measure.  This 
lav/  w^as  ])assed  by  the  Legislative  Assembly  and  promul- 
gated August  9,  1849,  [which  enacts  as  follows  :  '  Art,  2. 
The  National  Assembly  solely  can  declare  a  state  of  siege, 
except  as  in  hereafter  excepted.  Art.  3.  In  case  of  pro- 
rogation of  the  National  Assembly,  the  President  of  the 
Kepublic  may  declare  a  state  of  siege,  with  the  advice  of 
the  council  of  ministers.  The  President,  when  he  has 
declared  a  state  of  siege,  must  immediately  inform  the 
commission  created  by  virtue  of  Art.  32  of  the  Constitu- 
tion, thereof,  and,  according  to  the  importance  of  the 
circumstance,  convoke  the  National  Assembly.  The  Na- 
tional Assembly  from  the  time  when  it  meets,  maintaines 
or  abolishes  the  state  of  siege'],  and  still  governs  this 
impartant  matter,  except  however  one  modification  result- 
ing from  Art.  12  of  the  Constitution  of  June  14,  1852,  as 
3 


18  Appendix. 

regards  the  authority  invested  with  the  right  of  declaring 
a  state  of  siege.  By  the  terms  of  the  Constitution  of 
1852,  '  the  Emperor  has  the  right  of  declaring  a  state  of 
siege  in  one  or  more  departments^  provided  that  he  in- 
form the  Senate  thereof,  with  the  least  delay.'  " 


VI. 

Extracts  from  the  Debates  in  the  Federal  Conven- 
tion,   SHOWING    HOW  the    PROVISION    AS    TO  THE   HABEAS 

Corpus  came  into  its  present  shape. 

{May  29th,  1787.)  "  Mr.  Charles  Pinckney,  one  of  the 
deputies  of  South  Carolina,  laid  before  the  house  for 
their  consideration,  the  draft  of  a  Federal  Government, 
to  be  agreed  upon  between  the  free  and  independent 
States  of  America."    (1  Ellioffs  Deh.,  145.)     ^         ""     .  "" 

•'  Art.  yi.  [Las-t  clause  but  one.]  All  laws  regulating 
commerce  shall  require  the  assent  of  two  thirds  of  the 
members  present  in  each  house.  The  United  States  shall 
not  grant  any  title  of  nobility.  Tlie  Legislature  of  the 
United  States,  shall  pass  no  law  on  the  subject  of  reli- 
gion, nor  touching  or  abridging  the  liberty  of  the  press  ; 
nor  shall  the  privilege  of  the  writ  of  Habeas  Corpus  ever 
be  suspended,  except  in  case  of  rebellion  or  invasion." 
(1  //;.,  148.)      ^         ^        ^         ^         ^        ^ 

"Art.  IX.  [Last  clause.]  All  criminal  offences  (except 
in  cases  of  impeachment)  shall  be  tried  in  the  State 
where  they  shall  be  committed.  The  trials  shall  be  open 
and  public,  and  be  by  jury."     (1  lb.,  149.) 

July  26.  "  The  propositions  offered  to  the  Convention 
by  Mr.  C.  Pinckney,  ^  ^  were  referred  to  the  com- 
mittee "  [of  five].  (1  lb.,  223.) 

"  Draft  of  a  Constitution,  reported  by  the  committee  of  five^ 
Aug.  6,  1787.     {lb.,  224.) 

"  Art.  XL  Sect.  4.  The  trial  of  all  criminal  offences 
(except  in  cases  of  impeachments)  shall  be  in  the  State 
where  they  shall  be  committed,  and  shall  be  by  jury." 
(1  lb.,  229.) 

"  Monday,  Aug.  20,  1787.  In  Convention.— Mr.  Pinck- 
ney submitted  to  the  House,  in  order  to  be  referred  to 
the  committee  of  detail,  the  following  proj^ositions 
(5/^.,  445):     ^         ^         ^        ^ 


Debates  in  Federal  Convention  on  Haheas  Corpus,     19 

""^ '  Tlie  privileges  and  benefits  of  the  writ  of  haheas  corpus 
shall  be  enjoyed  in  this  government  in  the  most  expedi- 
tious and  ample  manner,  and  shall  not  be  suspended  by 
the  Legislature,  except  upon  the  most  urgent  and  press- 
ing occasions,  and  for  a  limited  time,  not  exceeding 

months. 

^'  '  The  liberty  of  the  press  shall  be  inviolably  pre- 
served. 

"  '  No  troops  shall  be  kept  up  in  time  of  peace,  but  by 
consent  of  the  Legislature. 

"  '  The  military  shall  always  be  subordinate  to  the  civil 
power  ;  and  no  grants  of  money  shall  be  made  by  the 
Legislature,  for  supporting  military  land  forces,  for  more 
than  one  year  at  a  time. 

"  '  No  soldier  shall  be  quartered  in  any  house,  in  time 
of  peace,  without  consent  of  the  owner.'     (1  lb.,  249. ) 

"  These  propositions  were  referred  to  the  committee  of 
detail,  without  debate  or  consideration  of  them  by  the 
House.'  "     (5  lb.,  446.) 

"  Tuesday,  Aug.  28,  1787.  It  was  moved  and  seconded 
to  amend  the  4th  section  of  the  11th  article,  to  read  as 
follows  : 

"  '  The  trial  of  all  crimes  (except  in  cases  of  impeach- 
ment) shall  be  by  jury  ;  and  such  trial  shall  be  held  in 
the  State  where  the  said  crimes  shall  have  been  commit- 
ted ;  but  w^hen  not  committed  w^ithin  any  State,  then  the 
trial  shall  be  at  such  place  or  places  as  the  Legislature 
may  direct;'  which  passed  in  the  affirmative."  (1  Jb.,  270.) 

"  Mr.  PiNCKNEY,  urging  the  propriety  of  securing  the 
benefit  of  the  habeas  corpus  in  the  most  ample  manner, 
moved,  that  it  should  not  be  suspended^  but  on  the  most 
urgent  occasions,  and  then  for  a  limited  time,  not  ex- 
ceeding twelve  months. 

"  Mr  KuTLEDGE  was  for  declaring  the  habeas  corpus  in- 
violate. He  did  not  conceive  that  a  suspension  could 
ever  be  necessary,  at  the  same  time,  through  all  the 
States. 

"  Mr  GouvEBNEUR  Morris  moved"  (5  lb.,  484)  to  *'  add 
the  following  amendment  to  the  4tli  section,  11th  article; 

"  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be 
suspended,  unless  where,  in  cases  of  rebellion  or  invasion, 
the  public  safety  may  require  it"  (1  lb.,  270.) 

"  Mr.  Wilson  doubted  whether  in  any  case  a  suspen- 
sion could  be  necessary,  as  the  discretion  now  exists 
with  judges,  in  most  important  cases,  to  keep  in  gaol  or 
admit  to  bail. 

"  The  first  part  of  Mr.  Gouverneur  Morris's  motion, 
to  the  word  '  unless,'  was  agreed  to  nem.  con.     On  the 


20  Appendix, 

remaiuing  part,  New  Hampshirey  Massachusetts,  Connec- 
ticut, Pennsylvania,  Delaware,  Maryland,  Virginia,  ay, 
7 ;  North  Carolina,  South  Carolina,  Georgia,  no,  3/' 
(5  II).,  484.) 

"  Saturday,  Sept.  8,  1787. — A  committee  was  then  ap- 
pointed by  ballot  to  revise  the  style  of,  and  arrange,  the 
articles  which  had  been  agreed  to  by  the  House.  The 
committee  consisted  of  Mr.  Johnson,  Mr.  Hamilton,  Mr, 
Gouverneur  Morris,  Mr.  Madison,  and  Mr.  King.'^'  (5  Ib.y 
530  ;  1  Ik,  295.) 

"  Bevised  Draft  of  the  Constitution j  reported  Sepiemher  12, 
1787,  by  the  Committee  of  Revision  : 

"Art.  I,  Sect.  9,  (Clause  2.)— The  privilege  of  the 
writ  of  habeas  corpus  shall  not  be  suspended,  unless 
when,  in  cases  of  rebelKon  or  invasion,  the  public  safety 
may  require  it."     (1  //>.,  298,  301.) 

'■'Art.  Ill,  Sect.  2,  (Clause  3.)— The  trial  of  all  crimes, 
except  in  cases  of  impeachment,  shall  be  by  jury  ;  and 
such  trial  shall  be  held  in  the  State  where  the  said 
crime  I  s]  shall  have  been  committed  ;  but  when  not  com- 
mitted within  any  State,  the  trial  shall  be  at  such  place 
or  places  as  the  Congress  may  by  law  have  directed." 
(1  IK,  304.) 

"  Thursday,  Sept.  13,  1789.—  ^  ''  It  was  moved 
and  seconded  to  proceed  to  the  comparing  of  the  report 
from  the  committee  of  revision  with  the  articles  which 
were  agreed  to  by  the  House,  and  to  them  referred 
for  arrangement ;  which  passed  in  the  affirmative. 
'^  ^  ^  And  the  same  was  read  by  paragraphs, 
compared,  and  in  some  places  corrected  and  amended." 
(1  It).,  307.) 

[The  extracts  last  cited  reappear  unaltered,  in  word  or 
position,  in  the  Constitution  submitted  to  the  States,  ex- 
cept the  word  "crime,"  which  was  changed  to  "crimes," 
but  on  whose  motion  it  does  not  appear.  (5  lb.,  535  to 
553.)] 


VII. 


Extracts  from  the  Debates  in  the  State  Conventions, 

RELATIVE  TO  THE  HaBEAS  CoRPUS. 

Massachusetts. 

January  26th,  1788.     "  The  paragraph  which  provides 


Debates  in  State  Convention  on  Haleas  Corpus.       21 

that  '  the  privilege  of  the  writ  of  haheas  corpus  shall  not 
be  suspended,  unless  in  cases  of  rebellion  or  invasion/ 
was  read,  when 

"  Gen.  TuoMrsoN  asked  the  President  to  please  to  pro- 
ceed. We  have,  said  he,  read  the  book  often  enough  ;  it 
is  a  consistent  piece  of  inconsistency. 

"  Hon.  Mr.  Adams,  in  answer  to  an  inquiry  of  thS  Hon. 
Mr.  Taylor,  said  that  this  power  given  to  the  general 
government  to  suspend  this  privilege  in  cases  of  rebellion 
aad  invasion,  did  not  take  away  the  power  of  the  several 
states  to  suspend  it,  if  they  shall  see  fit. 

"  Dr.  Tayloe  asked,  why  this  darhng  privilege  was  not 
expressed  in  the  same  manner  it  was  in  the  Constitution 
of  Massachusetts.  (Here  the  honorable  gentleman  read 
tl:e  paragraph  respecting  it,  in  the  Constitution  of  that 
Slate,  and  then  the  one  in  the  proposed  Constitution.) 
He  then  remarked  on  the  diiference  of  expression,  and 
asked  why  the  time  was  not  limited. 

"  Judge  Dana  said,  the  answer,  in  part,  to  the  honorable 
gentleman,  must  be,  that  the  same  men  did  not  make  both 
Constitutions  ;  that  he  did  not  see  the  necessity  or  great 
benefit  of  limiting  the  tvme.  Supposing  it  had  been  as  in 
our  Constitution,  '  not  exceeding  twelve  months,'  yet  as 
our  Legislature  can,  so  might  the  Congress,  continue  the 
suspension  of  the  writ  from  time  to  time,  or  from  year  to 
year.  The  safest  and  best  restriction,  therefore,  arises 
fiom  the  nature  of  the  cases  in  which  Congress  are  au- 
thorized to  exercise  that  power  at  all,  namely,  in  those  of 
rebellion  or  invasion.  These  are  clear  and  certain  terms, 
facts  of  public  notoriety,  and  w^henever  these  cases  shall 
cease  to  exist,  the  suspension  of  the  writ  must  necessarily 
cease  also.  He  thought  the  citizen  had  a  better  security 
for  his  privilege  of  the  writ  of  habeas  corpus  under  the 
Federal  than  under  the  State  Constitution  ;  for  our  Legis- 
lature may  suspend  the  wTit  as  often  as  they  judge  '  the 
most  urgent  and  pressing  occasions  call  for  it.'  He  hoped 
these  short  observations  would  satisfy  the  honorable 
gentleman's  inquiries  ;  otherwise,  he  should  be  happy  to 
do  it  by  going  more  at  large  into  the  subject. 

"  Judge  Sumner  said,  that  this  was  a  restriction  on 
Congress,  that  the  writ  of  haleas  corjMS  should  not  be 
suspended,  except  in  cases  of  rebellion  or  invasion.  The 
learned  judge  then  explained  the  nature  of  this  writ. 
■^'  *  ^  ^'  This  privilege,  he  said,  is  essential 
to  freedom,  and  therefore  the  power  to  suspend  it  is 
restricted.  On  the  other  hand,  the  State,  he  said, 
might  be  involved  in  danger  ;  the  worst  enemy  may  lay 
plans  to  destroy  us,  and  so  artfully  as  to  prevent  any 
evidence  against  him,  and  might  ruin  the  country,  with- 


22  Appendix. 

out  the  power  to  suspend  the  writ  was  thus  given.  Con- 
gress have  only  power  to  suspend  the  privilege  to  persons 
committed  by  their  authority.  A  person  committed  un- 
der the  authority  of  the  States  will  still  have  a  right  to 
this  writ."     (2  Eli  Deb.,  108,  109.) 

February  1,  1788.  "  Mr.  Mason.  ^  ""  ^  The 
paragraph  that  gives  Congress  power  to  suspend  the 
writ  of  haleas  corpus  claims  a  little  attention.  This  is  a 
great  bulwark,  a  great  privilege  indeed.  We  ought  not, 
therefore,  to  give  it  up  on  any  slight  pretence.  Let  us 
vsee  :  How  long  is  it  to  be  suspended  ?  As  long  as  rebel- 
lion or  invasion  shall  continue.  This  is  exceeding  loose. 
Why  is  not  the  time  limited  as  is  [in]  our  Constitution  ? 
But,  sir,  '  its  design  would  then  be  defeated.'  It  w^as  the 
intent ;  and  by  it  we  shall  give  up  one  of  our  greatest 
privileges."     (2  //.,  137.) 

New  Yobk  :  "  The  committee  then  proceeded  through 
sections  8,  9  and  10  of  this  article  [i^rt.  I.]  with  little  or 
no  debate.  As  the  Secretary  read  the  paragraphs,  amend- 
ments were  made  in  the  order  and  form  hereinafter  re- 
cited (2  EIL  DdK,  40(i)  :''.*.'' 

"  Sec,  9. — Eespecting  the  privilege  of  habeas  corpus  : 

"  '  Provided,  That  whenever  the  privilege  of  habeas  cor- 
pus shall  be  suspended,  such  suspension  shall  in  no  ca;se 
exceed  the  term  of  six  months,  or  until  the  next  meeting 
of  Congress.'     Moved  by  Mr.  Lansing."     (2  lb.,  407.) 

The  ratification  convention  of  the  State  of  New  York 
*' declared  and  made  known"  among  other  things 
■^'  ^  *      "  That   every  person    restrained  of   his 

liberty  is  entitled  to  an  inquiry  into  the  lawfulness  of 
such  restraint,  and  to  a  removal  thereof  if  unlawful ;  and 
that  such  inquiry  ought  not  to  be  denied  or  delayed,  ex- 
cept when,  on  account  of  public  danger,  the  Congress 
shall  suspend  the  privilege  of  the  writ  of  habeas  corpus'' 
(1  EIL  Deb.,  328) ;  and  that  "  Under  these  impressions, 
and  declaring  that  the  rights  aforesaid  cannot  be 
abridged  or  violated,  and  that  the  explanations  aforesaid 
are  consistent  with  the  said  Constitution  and  in  confidence 
that  the  amendments  which  shall  have  been  proposed  to 
the  said  Constitution  will  receive  an  early  and  mature 
consideration,  we  *  *  *  ratify  the  said  Consti- 
tution."    (1  lb.,  329.) 

The  convention  "  enjoin  it  upon  their  representatives 
in  Congress,  to  exert  all  their  influence  and  use  all  rea- 
sonable means,  to  obtain  a  ratification  of  the  following 
amendments  to  the  said  Constitution  (//'.)  :     *         *         * 


Debates  in  State  Convention  on  Habeas  Corpus.  23 

"  That  the  privilege  of  the  habeas  corpm  shall  not,  by 
any  law,  be  suspended  for  a  longer  term  than  six  months, 
or  until  twenty  days  after  the  meeting  of  the  Congress 
next  following  the  passing  the  act  for  such  suspension." 
(Ik,  330.) 

Virginia.  v 

"  Mr.  Wilson  Kicholas.  "^  *  But  it  is  complained 
that  they  may  suspend  our  laws.  The  suspension  of  the 
writ  of  habeas  corpus  is  only  to  take  place  in  cases  of  re- 
bellion or  invasion.  This  is  necessary  in  those  cases  ; 
in  every  other  case  Congress  is  restrained  from  suspend- 
ing it.  In  no  other  case  can  they  suspend  our  laws  ; 
and  this  is  a  most  estimable  security."  (3  Ell.  Deb.,  102.) 

"  Mr.  Grayson  thought  it  questionable  whether  rights 
not  given  uj)  were  reserved.  -  *  He  further  re- 
marked that  there  were  some  negative  clauses  in  the  Con- 
stitution which  refuted  the  doctrine  contended  for  by  the 
other  side.  For  instance  :  the  2d  clause  of  the  9th  Sec- 
tion of  the  1st  article  provided  that  '  the  privilege  of  the 
Avrit  of  habeas  corpus  shall  not  be  suspended,  unless 
when,  in  cases  of  rebellion  or  invasion,  the  public  safety 
may  require  it.'  And,  by  the  last  clause  of  the  same 
section,  '  no  title  of  nobility  shall  be  granted  by  the 
United  States.'  Now,  if  these  restrictions  had  not  been 
here  inserted,  he  asked  whether  Congress  would  not 
most  clearly  have  had  a  right  to  suspend  that  great  and 
valuable  right,  and  to  grant  titles  of  nobility  ?  When,  in 
addition  to  these  considerations,  he  saw  they  had  an  in- 
definite power  to  provide  for  the  general  welfare,  he 
thought  tliere  were  great  reasons  to  apprehend  great 
dangers.  He  thought,  therefore,  that  there  ought  to  be 
a  bill  of  rights."     (3  lb.,  449.) 

"Mr.  Henry.  *  *  What  will  be  the  result  if 
Congress,  in  the  course  of  their  legislation,  should  do  a 
thing  not  restrained  by  this  9th  Section  ?  It  will  fall  as 
an  incidental  power  to  Congress,  not  being  prohibited 
expressly  in  the  Constitution.  The  first  prohibition  is, 
that  the  privilege  of  the  writ  of  hab?as  coriAis  shall  not  be 
suspended,  but  when,  in  case  of  rebellion  or  invasion, 
the  public  safety  may  require  it.  It  results  clearly  that, 
if  it  had  not  said  so,  they  could  suspend  it  in  all  cases 
whatever."     (3  lb.,  461.) 

"  Mr  Eandolph.  ^  ^  But  the  insertion  of  the 
negative  restrictions  has  given  cause  of  triumph,  it 
seems,  to  gentlemen.  They  suppose  that  it  demonstrates 
that  Congress  are  to  have  powers  by  implication.     I  will 

t 


'24  Ap[>endi.i\ 

meet  them  on  that  ground.  I  persuade  myself  that 
every  exception  here  mentioned  is  an  exception,  not  from 
general  powers,  but  from  the  particular  powers  therein 
vested.  ^  ^  He  asks,  Where  is  the  power  to  which 
the  prohibition  of  suspending  the  habeas  corpus  is  an  ex- 
ception ?  I  contend  that,  by  virtue  of  the  power  given 
to  Congress  to  regulate  courts,  they  could  suspend  the 
writ  of  habeas  corpus.  This  is  therefore  an  exception  to 
that  power."     *        *        ^     (SEIL  Deb.,  464.) 


Till. 

Instances  in  which  the  Peivilege  has  been  sustained, 

AND  HOW  Understood. 
Marshall,  G.  J.,  Ex  p.  B oilman,  4  Cranch,  101. 

"  If  at  any  time  the  public  safety  should  require  the 
suspension  of  the  powers  vested  by  this  Act  in  the  Courts 
of  the  United  States,  it  is  for  the  Legislature  to  say  so. 
The  question  depends  on  political  considerations,  on 
which  the  Legislature  is  to  decide.  Until  the  legislative 
will  be  expressed,  the  Court  can  only  see  its  duty  and 
obey  the  laws."  • 

Taney,  G.  J.,  Ex  p.  John  Merriman,  9  Am.  Law  Beg.  (1861), 
536. 

"  I  can  add  nothing  to  these  clear  and  emphatic  words 
of  my  great  predecessor." 

1  Tucker.^  Blackstonc,  App.,  292. 

"  In  the  United  States  it  (the  writ  of  habeas  corpus)  can 
be  suspended  only  by  authority  of  Congress  ;  but  not 
w^henever  Congress  may  think  proper  ;  for  it  cannot  be 
suspended,  unless  in  cases  of  actual  rebellion  or  invasion." 

Story  Gon^t.,  Sjc.  1342,  an  I  no'ei  2  and  3. 

"  It  would  seem,  as  the  power  is  given  to  Congress  to 
suspend  the  writ  of  habeas  corpus,  that  the  right  to  judge 
whether  the  exigency  had  arisen  must  belong  exclusively 
to  that  body.  Martin  v.  Motf,  3  Wheat,  19.  See  also 
1  Tucker  s  Cowm.,  App.,  292  ;  1  Kenfs  Comm.,  Led.  12, 
2d  ed.,  pp.  262-5."  *  ''^  "^  "The  only  attempt 
ever  made  in  Congress  to  suspend  the  writ  of  habeas 
corpus  was  during  his  (Jefferson's)  administration,  on 
occasion  of  the  supposed  treasonable  conspiracy  of  Col. 
Aaron  Burr." 


History  of  3(J,  htlt  and  Wi  Amendments.  25 

Raicle  on  the  Constitution,  114. 

"  Of  this  the  Constitution  probably  intends  that  the 
Legislature  of  the  United  States  shall  be  the  judges, 
charged  as  thej  are  Avith  the  preservation  of  the  United 
States  from  both  these  evils,  and  it  seems  not  unreason- 
able that  this  control  over  the  writ  of  habeas  corpus  should 
rest  with  them." 

Smith's  Comm,,  364 

"  *  *  *  The  restrictions  laid  u|  on  the  legisla- 
tive power  of  this  Union,  under  express  prohibitions 
found  in  the  same  instrument ;  and  among  them  is  that 
which  forbids  the  habeas  corpus  to  be  suspended." 

Sedgwick's  Stat,  and  Const.  Lcnv,  598. 

"  It  is  understood  that,  as  the  unlimited  power,  in 
cases  of  rebellion  and  invasion,  is  vested  in  Congress, 
the  right  to  judge  of  the  expediency  of  the  exercise  is 
also  vested  absolutely  in  that  body." 


IX. 

History  of  the  Third,  Fifth  and  Sixth  Amendments 
TO  THE  Constitution. 

Jn  the  State  Conventions. 
Massachusetts. 

[The  Constitution  was  fii-st  discussed  by  paragraphs. 
In  the  course  of  this  debate  the  following  remarks  were 
made  :  | 

"  January  30, 1787. — Mr.  Holmes  :  Mr.  President,  [John 
Hancock,]  I  rise  to  make  some  remarks  on  the  paragraph 
under  consideration,  which  treats  of  the  judiciary  power. 

"  It  is  a  maxim  universally  admitted  that  the  safety  of 
a  subject  consists  in  having  a  right  to  a  trial  as  free  and 
impartial  as  the  lot  of  humanity  will  admit  of.  Does  the 
Constitution  make  provision  for  such  a  trial  ?  I  think 
not ;  for  in  a  criminal  process,  a  person  shall  not  have  a 
right  to  insist  on  a  trial  in  the  vicinity  where  the  fact  was 
committed,  where  a  jury  of  his  peers  would,  from  their 
local  situation,  have  an  opportunity  to  form  a  judgment 
of  the  character  of  the  person  charged  with  the  crime, 
4 


26  Appendix, 

and  also  to  judge  of  the  credihility  of  the  witnesses.  There 
a  person  must  be  tried  by  a  jury  of  strangers  ;  a  jury  who 
maij  be  interested  in  his  conviction  ;  and  where  he  mmjy 
by  reason  of  the  distance  of  his  residence  from  the  place 
of  trial,  be  incapable  of  making  such  a  defence,  as  he  is, 
in  justice^  entitled  to,  and  which  he  could  avail  himself  of, 
if  his  trial  was  in  the  same  county  where  the  crime  is 
said  to  have  been  committed. 

"  These  circumstances,  as  horrid  as  they  are,  are  ren- 
dered still  more  dark  and  gloomy,  as  there  is  no  provi- 
sion made  in  the  Constitution  to  prevent  the  attorney- 
general  from  filing  information  against  any  person, 
whether  he  is  indicted  by  the  grand  jury  or  not ;  in  con- 
sequence of  which,  the  most  innocent  person  in  the  com- 
monwealth may  be  taken  by  virtue  of  a  warrant  issued  in 
consequence  of  such  information,  and  dragged  from  his 
home,  his  friends,  his  acquaintance,  and  confined  in  pri- 
son, until  the  next  session  of  the  court  which  has  juris- 
diction of  the  crime  with  which  he  is  charged,  (and  how 
frequent  those  sessions  are  to  be  we  are  not  yet  informed 
of,)  and  after  long,  tedious,  and  painful  imprisonment, 
though  acquitted  on  trial,  may  have  no  possibility  to  ob- 
tain any  kind  of  satisfaction  for  the  loss  of  his  liberty, 
the  loss  of  his  time,  great  expenses,  and  perhaps  cruel 
sufferings. 

"  And  what  makes  the  matter  still  more  alarming  is, 
that  the  mode  of  criminal  process  is  to  be  pointed  out  by 
Congress,  and  they  have  no  constitutional  check  on  them, 
except  that  the  trial  is  by  {ijury;  but  who  this  jury  is  to 
be,  how  qualified,  where  to  live,  how  appointed,  or  by 
what  rules  to  regulate  their  procedure,  we  are  ignorant 
of  as  yet  :  whether  they  are  to  live  in  the  county  where 
the  trial  is  ;  whether  they  are  to  be  chosen  by  certain 
districts,  or  whether  they  are  to  be  appointed  by  the 
sheriff,  ex-officio  ;  whether  they  are  to  be  for  one  session 
of  the  court  only,  or  for  a  certain  term  of  time,  or  for 
good  behavior,  or  during  pleasure,  are  matters  which  we 
are  entirely  ignorant  of  as  yet. 

"  The  mode  of  trial  is  altogether  undetermined ; 
whether  the  criminal  is  to  be  allowed  the  benefit  of  coun- 
sel ;  whether  he  is  to  be  allowed  to  meet  his  accuser  face 
to  face  ;  whether  he  is  to  be  allowed  to  confront  the  wit- 
nesses, and  have  the  advantage  of  cross-examination,  we 
are  not  yet  told. 

"  These  are  matters  of  by  no  means  small  consequence  ; 
yet  we  have  not  the  smallest  constitutional  security  that 
we  shall  be  allowed  the  exercise  of  these  privileges, 
neither  is   it  made   certain  in  the  Constitution   that  a 


History  of  M,  5th  and  Qth  Amendments,  27 

person  charged  with  the  crime  shall  have  the  privilege  of 
appearing  before  the  Court  or  jury  which  is  to  try  him. 

"  On  the  whole,  when  we  fully  consider  this  matter,  and 
fully  investigate  the 'powers  granted,  explicitly  given,  and 
specially  delegated,  we  shall  find  Congress  possessed  of 
powers  enabling  them  to  institute  judicatories  little  less 
inauspicious  than  a  certain  tribunal  in  Spain,  which  has 
long  been  the  disgrace  of  Christendom  :  I  mean  that  dia- 
bolical institution  the  Inquisition.     ^         ^'         "^         ^ 

"  There  is  nothing  to  prevent  Congress  from  passing 
laws  which  shall  compel  a  man  who  is  accused  or  sus- 
pected of  a  crime  to  furnish  evidence  against  himself,  and 
even  from  establishing  laws  which  shall  order  the  Court 
to  take  the  charge  exhibited  against  a  man  for  truth, 
unless  he  can  furnish  evidence  of  his  innocence. 

"  I  do  not  pretend  to  say  Congress  tvitl  do  this  ;  but, 
sir,  I  undertake  to  say  that  Congress  (according  to  the 
powers  proposed  to  be  given  them  by  the  Constitution) 
may  do  it ;  and  if  they  do  not,  it  will  be  owing  entirety — I 
repeat  it,  it  will  be  owing  entirely — to  the  goodness  of  the 
men,  and  not  in  the  least  degree  to  the  goodness  of  the 
Constitution. 

"  The  framers  of  our  State  Constitution  took  particular 
care  to  prevent  the  General  Court  from  authorizing  the 
judicial  authority  to  issue  a  warrant  against  a  man  for  a 
crime,  unless  his  being  guilty  of  the  crime  was  supported 
by  oath  or  affirmation,  prior  to  the  warrant  being  granted  ; 
why  it  should  be  esteemed  so  much  more  safe  to  intrust 
Congress  with  the  power  of  enacting  laws,  which  it  was 
deemed  so  unsafe  to  intrust  our  State  Legislature  with,  I 
am  unable  to  conceive."     (2  Ell  Deb.,  109  to  112.) 

"  Mr.  GoEE  observed,  in  reply  to  Mr.  Holmes,  that 
*  "  *  very  few  governments  (certainly  not  this) 
can  be  interested  in  depriving  the  people  of  trial  b}"  ji^ry, 
in  questions  of  meum  et  tuum.  In  criminal  cases  alone  are 
they  interested  to  have  the  trial  under  their  own  control ; 
and,  in  such  cases,  the  Constitution  expressly  stipulates 
for  trial  by  jury ;  but  then,  says  the  gentleman  from 
Rochester,  (Mr.  Holmes,)  to  the  safety  of  life  it  is  indis- 
pensably necessary  the  trial  of  crimes  should  be  in  the 
vicinity  ;  and  the  vicinity  is  construed  to  mean  county  ; 
this  is  very  incorrect,  and  gentlemen  will  see  the  impro- 
priety, by  referring  themselves  to  the  different  local 
divisions  and  districts  of  the  several  States.  But  further, 
said  the  gentleman,  the  idea  that  the  jury,  coming  from 
the  neighborhood  and  knowing  the  character  and  circum- 
stances of  the  party,  is  promotive  of  justice,  on  reflection 
will  appear  not  founded  in  truth.  If  the  jury  judge  from 
any  other  circumstances  but  what  are  part  of  the  cause  in 


28  Appendix, 

question,  they  are  not  impartial.  The  great  object  is  to 
determine  on  the  real  merits  of  the  cause,  uninfluenced 
by  any  personal  considerations  ;  if,  therefore,  the  jury 
could  be  perfectly  ignorant  of  the  person  in  [on]  trial,  a 
just  deciS'ion  would  be  more  probable.  From  such  motives 
did  the  wise  Athenians  so  constitute  the  famed  Areopagus, 
that,  when  in  judgment,  this  Court  should  sit  at  midnight, 
and  in  total  darkness,  that  the  decision  might  be  on  the 
thing,  and  not  on  the  person.  Further,  said  the  gentle- 
man, it  has  been  said,  because  the  Constitution  does  not 
expressly  provide  for  an  indictment  by  grand  jury  in 
criminal  cases,  therefore  some  officer  under  this  govern- 
ment will  be  authorized  to  file  informations,  aud  bring 
any  man  to  jeopardy  of  his  life,  and  indictment  by  grand 
jury  will  be  disused.  If  gentlemen  who  pretend  such 
fears,  will  look  into  the  Constitution  of  Massachusetts, 
they  will  see  that  no  ]3rovision  is  therein  made  for  an  in- 
dictment by  grand  jury,  or  to  oppose  the  danger  of  an 
attorney-general  filing  informations  ;  3^et  no  difficulty  or 
danger  has  arisen  to  the  people  of  this  Commonwealth 
from  this  defect,  if  gentlemen  please  to  call  it  so.  If  gen- 
tlemen w^ould  be  candid,  and  not  consider  that,  wherever 
Congress  may  possibly  abuse  power  they  certainly  will, 
there  would  no  difficulty  in  the  minds  of  any  in  adopting 
the  proposed  constitution."     (2  lb.,  112,  113.) 

[The  disciission  of  the  separate  paragraphs  being 
ended,  Mr.  Hancock  submitted  several  propositions  to 
the  Convention,  the  text  of  which  is  not  given.  (2  lb., 
123.)  On  the  sixth  proposition,  the  following  remarks 
w^ere  made  :] 

"  Febrnanj  1,  1788— Mr.  Adams  :  ^  ^  ^  Your 
Excellency's  next  proposition  is,  to  introduce  the  indict- 
ment of  a  grand  jury  before  any  person  shall  be  tried  for 
any  crime  by  which  he  may  incur  infamous  punishment 
or  loss  of  life  ;  and  it  is  followed  by  another,  which 
recommends  a  trial  by  jury  in  civil  actions  between 
citizens  of  different  States,  if  either  of  the  parties  shall 
request  it.  These,  and  several  others  which  I  have 
mentioned,  are  so  evidently  beneficial  as  to  need  no 
comment  of  mine.  And  they  are  all,  in  every  particular, 
of  so  general  a  nature,  and  so  equally  interesting  to 
every  State,  that  I  cannot  but  persuade  myself  to  think 
they  would  all  readily  join  with  us  in  the  measure  pro- 
posed by  your  Excellency,  if  we  should  now  adopt  it." 
(2  lb.,  132,  133.) 

[Mr.  Hancock's  propositions  were  referred  to  "  a  com- 
mittee, wdio  reported  some  amendments"  [lb.,  148),  ap- 
parently in  the  form  finally  adopted.    (lb.)] 


Histonf  of  3d,_5thjajid  6f/(  Amendments.  29 

"  VI.  That  no  person  shall  be  tried  for  any  crime  by 
which  he  may  incur  an  infamous  punishment,  or  loss  of 
life,  until  he  bel^firstj  indicted  by  a  grand  jury,  except  in 
such  cases  as  may  arise  in  the  government  and  regulation 
of  the  land  forces."     (2  Ell  Deh.,  177.) 

NewJ^Hampshihe. 

VI.  (Same  as  Massachusetts,  supra,  1  Ih.,  326.) 
"X.  That  no"  standing  army  shall  be  kept  up  in  time 
of  peace,  unless  with  the  consent  of  three-fourths  of  the 
members  of  each  branch  of  Congress  ;  nor  shall  soldiers, 
in  time,  of  peace,  be  quartered  upon  private  hou.ses,  with- 
out the  consent  of  the  owners." 

New  Yoek. 

''July  2,  1788.— Mr.  Teeadwell.  ^  ''  ^  It 
appears  to  me  that,  in  forming  this  Constitution,  we 
have  run  into  the  same  error  which  the  lawyers  and 
Pharisees  of  old  were  charged  with  ;  that  is,  while  we 
have  secured  the  tithes  of  mint,  anise  and  cumin,  we 
have  neglected  the  weightier  matters  of  the  law — judg- 
ment, mercy,  and  faith.  Have  we  not  neglected  to 
secure  to  ourselves  the  weighty  matters  of  judgment  or 
justice,  by  empowering  the  general  government  to  estab- 
lish one  supreme,  and  as  many  inferior  Courts  as  they 
please,  whose  proceedings  they  have  a  right  to  fix  and 
regulate  as  they  shall  think  fit,  so  that  we  are  ignorant 
whether  they  shall  be  according  to  the  common,  civil,  the 
Jewish,  or  Turkish  law  ?  What  better  provisions  have 
we  made  for  mercy,  when  a  man,  for  ignorantly  passing 
a  counterfeit  continental  note,  or  bill  of  credit,  is  liable 
to  be  dragged  to  a  distant  county,  two  or  three  hundred 
miles  from  home,  deprived  of  the  support  and  assist- 
ance of  friends,  to  be  tried  by  a  strange  jury,  ignorant 
of  his  character,  ignorant  of  the  character  of  the 
witnesses,  unable  to  contradict  any  false  testimony 
brought  against  him,  by  their  own  knowledge  of  facts, 
and  with  whom  the  prisoner,  being  unacquainted,  he 
must  be  deprived  totally  of  the  benefit  of  his  challenge  ? 
And  besides  all  that,  he  may  be  exposed  to  lose  his 
life,  merely  for  want  of  property  to  carry  his  witnesses 
to  such  a  distance  ;  and  after  all  this  solemn  farce  and 
mockery  of  a  trial  by  jury,  if  they  should  acquit  him,  it 
will  require  more  ingenuity  than  1  am  master  of,  to  show 
that  he  does  not  hold  his  life  at  the  will  and  pleasure  of 
the  Supreme  Court,  to  which  an  appeal  lies,  and  conse- 
quently depend  on  the  tender   mercies,  perhaps,  of  the 


30  Appendix. 

wicked  (for  judges  may  be  wicked)  ;  and  what  those 
tender  mercies  are,  I  need  not  tell  you.  You  may  read 
them  in  the  history  of  the  Star  Chamber  Court  of  England, 
and  in  the  Courts  of  Philip,  and  in  your  Bible."  (2  Ell. 
Deh.,  399,  400.) 

New  York. 
-     The  Convention  "  declared  and  made  known  \  ^     ^     ^ 

*'  That  the  militia  should  not  be  subject  to  martial  law, 
except  in  time  of  war,  rebellion,  or  insurrection. 

"  That  standing  armies,  in  time  of  peace,  are  dangerous 
to  liberty,  and  ought  not  to  be  kept  up,  except  in  cases  of 
necessity ;  and  that  at  all  times  the  militar}^  should  be 
under  strict  subordination  to  the  civil  power. 

"  That,  in  time  of  peace,  no  soldier  ought  to  be  quar- 
tered in  any  house,  without  the  consent  of  the  owner ; 
and,  in  time  of  war,  only  by  the  civil  magistrate,  in  such 
manner  as  the  laws  may  direct. 

"  That  no  person  ouglit  to  be  taken,  imprisoned,  or 
disseized  of  his  freehold,  or  be  exiled,  or  deprived  of  his 
privileges,  franchises,  life,  liberty,  or  property,  but  by 
due  process  of  law. 

"  That  no  person  ought  to  be  twice  put  in  jeopardy  of 
life  or  limb,  for  one  and  the  same  offence  ;  nor,  unless  in 
case  of  impeachment,  be  punished  more  than  once  for 

the  same  offence. 

it         t^         ^ 

"  That  (except  in  the  govemment  of  the  land  and  naval 
forces,  and  of  the  militia  when  in  actual  service,  and  in 
cases  of  impeachment)  a  presentment  or  indictment  by  a 
grand  jury  ought  to  be  observed  as  a  necessary  prelimi- 
nary to  the  trial  of  all  crimes,  cognizable  by  the  judiciary 
of  the  United  States  ;  and  such  trial  should  be  speedy, 
public,  and  by  an  impartial  jury  of  the  county  where  the 
crime  w^as  committed  ;  and  that  no  person  can  be  found 
guilty  without  the  unanimous  consent  of  such  jury.  But 
in  cases  of  crimes  not  committed  wdthin  any  county  of 
any  of  the  United  States,  and  in  cases  of  crimes  commit- 
ted within  any  county  in  wdiich  a  general  insurrection 
may  prevail,  or,  which  may  be  in  possession  of  a  foreign 
enemy,  the  inquiry  and  trial  may  be  in  such  countj^  as 
the  Congress  shall  by  law  direct ;  which  county,  in  the 
two  cases  last  mentioned,  should  be  as  near  as  conveni- 
ently may  be  to  that  county  in  which  the  crime  may  have 
been  committed  ;  and  that,  in  all  criminal  prosecutions 
the  accused  ought  to  be  informed  of  the  cause  and  nature 
of  his  accusation,  to  be  confronted  with  his  accusers  and 


History  of  3d,  5tJi  and  6fJt  Ainendmenfs.  31 

the  witnesses  against  him  ;  to  have  the  means  of  pro- 
ducing his  witnesses  ;  and  the  assistance  of  counsel  for 
his  defence  ;  and  should  not  be  compelled  to  give  evidence 
against  himself. 

"  That  the  trial  by  jury,  in  the  extent  that  it  obtains  by 
the  common  law  of  England,  is  one  of  the  greatest  secu- 
rities to  the  rights  of  a  free  people,  and  ought  to  remain 
inviolate."  (Ih.,  328.) 

Maryland. 

*  -x-  -jc-  jipril  25,  1788. — A  committee  was  ap- 
pointed to  report  "  a  draft  of  such  amendments  and  alter- 
ations as  may  be  thought  necessary."  (Address  to  the 
people  of  Maryland,  (2  i^7^.  i>e/>.,  549.)     -         ^         ^- 

"  The  following  amendments  to  the  proposed  Constitu- 
tion were  separately  agreed  to  by  the  committee,  most  of 
them  by  an  unanimous  vote,  and  all  of  them  by  a  great 
majority.     (2  lb.,  549,  550.)     ^  ^      ^-         "' 

"  '  2.  That  there  shall  be  a  trial  by  jury  in  all  criminal 
cases,  according  to  the  course  of  proceeding  in  the  State 
where  the  offence  is  committed  ;  and  that  there  be  no  ap- 
peal from  matter  of  fact,  or  second  trial  after  acquittal ; 
but  this  provision  shall  not  extend  to  such  cases  as  may 
arise  in  the  government  of  the  land  and  naval  forces.' 
(2  7/>.,  550.)     *    ^    *        * 

"  The  great  objects  of  these  amendments  were  to  secure 
the  trial  by  jury  in  all  cases,  the  boasted  birthright  of 
Englishmen  and  their  descendants,  and  the  palladium  of 
civil  liberty ;  and  to  prevent  the  appeal  from  fact,  which 
not  only  destroys  that  trial  in  civil  cases,  but  b}'  construc- 
tion, may  elude  it  in  criminal  cases.  {lb.)  ^'       ^ 

"  '  10.  That  soldiers  be  not  quartered  in  time  of  peace 
upon  private  houses,  without  the  consent  of  the  owners.' 
(2  7/>.,  552.)     *        ''..'' 

" '  13.  That  the  militia  shall  not  be  subject  to  martial 
law,  except  in  time  of  war,  invasion  or  rebellion.' 

"  This  provision  to  restrain  the  powers  of  Congress 
over  the  militia,  although  by  no  means  so  ample  as  that 
provided  by  Magna  Carta,  and  the  other  great  fundamen- 
tal and  constitutional  laws  of  Great  Britain,  (it  being  con- 
trary to  Magna  Carta  to  punish  a  freeman  by  martial  law 
in  time  of  peace,  and  murder  to  execute  him,)  yet  it  may 
prove  an  inestimable  check  ;  for  all  other  provisions  in 
favor  of  the  rights  of  men  would  be  vain  and  nugatory,  if 
the  power  of  subjecting  all  men  able  to  bear  arms,  to 
martial  law  at  any  moment  should  remain  vested  in 
Congress. 


i^'I  Appendix. 

"  Thus  far  ths  ain3n:lrn3nts  were  agreed  to/'     (2  Ih., 

552.) 

Virginia, 

"  Mr.  Kandolph,     ^  ^  ^     It  is  also  objected 

that  the  trial  by  jury,  the  writ  of  habeas  corpus,  and  the 
liberty  of  the  press,  are  insecure.  But  I  contend  that 
the  habeas  eorpus  is  at  least  on  as  secure  and  good  a  footing 
as  it  is  in  England.  In  that  country,  it  depends  on  the 
will  of  the  Legislature.  That  privilege  is  secured  here  by 
the  Constitution,  and  it  is  only  to  be  suspended  in  cases 
of  extreme  emergency.  Is  not  this  a  fair  footing  ?"  *  ^^ 
(3  ElU  Deh.,  203.) 

"Mr.  Madison.  ^  ;-*  -  The  Enghsh  Parliament 
never  passes  a  mutiny  bill  but  for  one  year.  This  is  ne- 
cessary, for  otherwise  the  soldiers  would  be  on  the  same 
footing  with  the  officers,  and  the  army  would  be  dissolved. 
One  mutiny  bill  has  been  here  in  force  since  the  revolu- 
tion. I  humbly  conceive  there  is  extreme  danger  of  es- 
tablishing cruel  martial  regulations.  If  at  any  time  our 
rulers  should  have  unjust  and  iniquitous  designs  against 
our  liberties,  and  should  wdsh  to  establish  a  standing 
army,  the  first  attempt  would  be  to  render  the  service 
and  use  of  the  militia  odious  to  the  people  themselves, 
subjecting  them  to  unnecessary  severity  of  discipline  in 
time  of  peace,  confining  them  under  martial  law,  and  dis- 
gusting them  so  much  as  to  make  them  cry  out,  'Give 
us  a  standing  army  !'  I  would  wish  to  have  some  check 
to  exclude  this  danger  ;  as,  that  the  militia  should  never 
be  subject  to  martial  law  but  in  time  of  war."  (lb.,  381.) 

*  *  4f  <c  rjy^^Q  Hon.  mcmbcr  -  '^  ^^  wishes 
martial  law  to  be  exercised  only  in  time  of  war,  under  an 
idea  that  Congress  can  establish  it  in  time  of  peace. 
The  states  are  to  have  the  authority  of  training  the  mili- 
tia according  to  the  congressional  discipline  ;  and  of  gov- 
erning them  at  all  times  when  not  in  the  service  of  the 
Union.  Congress  is  to  govern  such  part  of  them  as  may 
be  employed  in  the  actual  service  of  the  United  States, 
and  such  part  only  can  be  subject  to  martial  law."  (//;., 
383.) 

"Mr.  Mason.  *  *  The  gentleman  has  said  that 
they  would  be  only  subject  to  martial  law  ^dien  in  actual 
service.  He  demanded  what  was  to  hinder  Congress 
from  inflicting  it  always,  and  making  a  general  law  for 
the  purpose.  If  so,  said  he,  it  must  finally  produce, 
most  infallibly,  the  annihilation  of  the  state  governments. 
These  were  his  apj^rehensions  ;  but  he  prayed  God  they 
might  be  groundless. 


History  of  the  Zd,  bth  and  &h  Amendments.  33 

*'  Mr.  Madison  replied,  that  the  obvious  explanation 
was,  that  the  states  were  to  appoint  the  officers,  and  gov- 
ern all  the  militia,  except  that  part  which  was  called  into 
the  actual  service  of  the  United  States."  (lb.,  416.) 

"  Mr  Heney.  "  -  ^^  "  That  paper  tells  you  that 
the  trial  of  crimes  shall  be  by  jury,  and  held  in  the  State 
where  the  crime  shall  have  been  committed.  Under  this 
extensive  provision,  they  may  proceed  in  a  manner  ex- 
tremely dangerous  to  liberty  ;  a  person  accused  may  be 
carried  from  one  extremity  of  the  state  to  another,  and  be 
tried,  not  by  an  impartial  jury  of  the  vicinage,  acquain- 
ted with  his  character  and  the  circumstances  of  the  fact, 
but  by  a  jury  unacquainted  with  both,  and  who  may  be 
biased  against  him.  Is  not  this  sufficient  to  alarm  men?" 
(7^.,  447.) 

"Mr  Grayson.  -  -  ■•  The  allusion  another 
gentleman  has  made  to  this  trial,  as  practiced  in  Eng- 
land, is  improper.  It  does  not  justify  this  regulation. 
The  jury  ma^come  from  any  part  of  the  state.  They 
possess  an  absolute,  uncontrollable  power  over  the  venue. 
The  conclusion,  then  is,  that  they  can  hang  any  one  they 
please,  by  having  a  jury  to  suit  their  purpose.  They 
might  on  particular,  extraordinary  occasions,  suspend 
the  privilege.  The  Romans  did  it  on  creating  a  dictator. 
Tlie  British  Government  does  it  when  the  habeas  corpus 
is  to  be  suspended  ;  when  the  salus  popidi  is  affected.  I 
will  never  consent  to  it  unless  it  be  properly  defined." 
(lb.,  569.) 

"  Mr.  Randolph. — I  beg  leave  to  differ  from  my  honor- 
able friends  in  answering  this  objection.  They  said,  that 
in  case  of  a  general  rebellion,  the  jury  was  to  be  drawn 
from  some  other  part  of  the  country.  I  know  this  prac- 
tice is  sanctified  by  tlie  usages  in  England.  But  I  always 
thought  that  this  was  one  of  those  instances  to  which 
that  country,  though  alive  to  liberty,  had  unguardedly 
submitted.  I  hope  it  will  never  be  so  here.  If  the  whole 
country  be  in  arms,  the  prosecutor  for  the  commonwealth 
can  get  a  good  jury  by  challenging  improper  jurors.  The 
right  of  challenging,  also,  is  sufficient  security  for  the 
person  accused.  I  can  see  no  instance  where  this  will  be 
abused.  It  will  answer  every  purpose  of  the  government, 
and  individual  security."     [lb.,  574.) 

Declaration  op  Rights. 

"  8th.  That,  in  all  criminal  and  capital  prosecutions,  a 
man  hath  a  right  to  demand  the  cause  and  nature  of  his 
accusation,  to  be  confronted  with  the  accusers   and  wit- 
5 


34  Appendix, 

nesses,  to  call  for  evidence,  and  be  allowed  counsel  in 
his  favor,  and  to  a  fair  and  speedy  trial  by  an  impartial 
jury  of  his  vicinage,  without  whose  unanimous  consent  he 
cannot  be  found  guilty  (except  in  the  government  of  the 
land  and  naval  forces) ;  nor  can  be  compelled  to  give 
evidence  against  himself, 

"  10th.  That  every  freeman  restrained  of  his  liberty  is 
entitled  to  a  remedy,  to  inquire  intO'  the  lawfulness 
thereof,  and  to  remove  the  same  if  unlawful :,  and  that 
such  remedy  ought  not  to  be  denied  or  delayed. 

"  18th.  That  no  soldier  in  time  of  peace  ought  to  be 
quartered  in  any  house,  without  the  consent  of  the 
owner ;  and,  in  time  of  war,  in  such  manner  only  as 
the  law  directs."     {Ih.y  658,  659.) 

Amendments  to  the  Constiitjiton. 

*^'  11th.  That  the  militia  shall  not  be  subject  to  martial 
law,  except  when  in  actual  service,  in  time  of  war,  inva- 
sion, or  rebellion  ;  and  when  not  in  the  actual  service  of 
the  United  States,  shall  be  subject  only  to  such  fines, 
penalties  and  punishments  as  shall  be  directed  or  inflicted 
by  the  laws  of  its  own  State. 

"  15th.  That  in  criminal  prosecutions,  no  man  shall  be 
restrained  in  the  exercise  of  the  usual  and  accustomed 
right  of  challenging  or  excepting  to  the  jury."  (lb.,  660, 
661.) 

Debates  ik  Congress^. 

[The  amendments  were  considered  in  the  House,  as 
follows  :  The  proposed  amendments  were  referred  to  a 
Committee  of  Eleven  (July  21),  reported  upon  (July  28), 
referred  to  the  Committee  of  the  Whole  on  the  state  of 
the  Union  (1  Gale,  793),  and  then  reported  to  the  House 
(76.,  765),  debated  there  (76.,  765  to  777),  referred  to  a 
Committee  to  arrange  and  report  (76.,  778),  which  report 
was  agreed  to,  August  24,  1789  (76.,  779),  and  engrossed 
and  sent  to  the  Senate  (76.  and  71);,  there  considered 
(76.,  74,  76),  amendments-  proposed  (76.,  83),  which  were 
amended  by  the  House  (76.,  903,  905) ;  finally  agreed  to 
by  the  Senate  (76.,  88).] 

Mr.  Madison  made  the  following  propositions  of 
amendment  : 

"  [4,  Clause  5.] — No  soldier  shall,  in  time  of  peace,  be 
quartered  in  any  house,  without  the  consent  of  the 
owner  ;  nor  at  any  time,  but  in  a  manner  warranted 
by  law. 


History  of  (he  ^d,  hth  and  ijth  Amendments.  85 

*'  [4,  Clause  6.  ] — No  person  sliall  be  subject  except  in 
cases  of  impeachment  to  more  than  one  punishment  or 
one  trial  for  the  same  offence  ;  nor  shall  be  compelled  to 
be  a  witness  against  himself  ;  nor  be  deprived  of  life,  lib- 
erty or  property  without  due  process  of  law,  nor  be 
obliged  to  relinquish  his  property  when  it  may  be  neces- 
sary for  public  use,  without  a  just  compensation. 

"  [4,  Clause  8.] — In  all  criminal  prosecutions,  the  ac- 
cused shall  enjoy  the  right  to  a  speedy  and  public  trial ; 
to  be  informed  of  the  cause  and  nature  of  the  accusation ; 
to  be  confronted  with  his  accusers  and  the  witnesses 
against  him  ;  to  have  a  compulsory  process  for  obtaining 
witnesses  in  his  favor ;  and  to  have  the  assistance  of 
counsel  for  his  defence. 

"  [7,  Clause  1.  ] — The  trial  of  all  crimes  (except  in  cases 
of  impeachment  and  cases  arising  in  the  land  or  naval 
forces,  or  the  militia  when  on  actual  service  in  time  of 
war  or  public  danger)  shall  be  by  an  impartial  jury  of 
freeholders  of  the  vicinage,  with  the  requisite  of  unani- 
mity for  conviction,  of  the  right  of  challenge  and  other 
accustomed  requisites  ;  and  in  all  crimes  punishable  with 
loss  of  life  or  member,  presentment  or  indictment  by  a 
grand  jury  shall  be  an  indispensable  preliminary  ;  pro- 
vided, that  in  cases  of  crimes  committed  within  any 
county  which  may  be  in  possession  of  the  enem}^  or  in 
which  a  gieneral  insurrection  may  prevail  the  trial  may 
by  law  be  authorized  in  some  other  county  of  the  same 
State,  as  near  as  may  be  to  the  seat  of  the  oifence. 

^'  [7,  Clause  2.] — In  cases  of  crimes  not  committed 
within  any  county,  the  trial  may  by  law  be  in  such  county 
as  the  laws  shall  have  prescribed.  In  suits  at  common 
law  between  man  and  man,  the  trial  by  jury,  as  one  of 
the  best  securities  to  the  rights  of  the  people,  ought  to 
remain  inviolate."  (1  Gale  Hist,  of  Cong.,  1834,  pp.  434, 
435.) 

[These  propositions  were  referred  to  a  committee  of 
eleven,  who  reported  thereon  as  follows :] 

[4th,  Clause  4.] — "  No  soldier  shall  in  time  of  peace  be 
quartered  in  any  house  without  the  consent  of  the  owner  ; 
nor  at  any  time  but  in  a  manner  to  be  prescribed  by 
law." 

[4th,  Clause  5.] — "  No  person  shall  be  subject  except  in 
case  of  impeachment,  to  more  than  one  punishment  or 
one  trial  for  the  same  offence ;  nor  shall  be  compelled  to 
be  a  witness  against  himself ;  nor  be  deprived  of  life, 
liberty  or  property  without  due  process  of  law,  nor  be 
obliged  to  relinquish  his  property  when  it  may  be  neces- 
sary for  public  use  without  a  just  compensation." 


i^6  Appendix, 

[7tlj,  Clause  1.] — ''  In  all  criminal  prosecutions,  fbe 
accused  shall  enjoy  the  right  to  a  speedy  and  public  trial; 
to  be  informed  of  the  cause  and  nature  of  the  accusation  ; 
to  be  confronted  with  the  witnesses  against  him  ;  to  have 
compulsory  process  for  obtaining  witnesses  in  his  favor ; 
and  to  have  the  assistance  of  counsel  for  his  defence." 

[7th,  Clause  2.] — "  The  trial  of  all  crimes  (except  in 
cases  of  impeachment  and  in  cases  arising  in  the  land  or 
naval  forces,  or  in  the  militia  when  in  actual  service  in 
time  of  war  or  public  danger,)  shall  be  by  an  impartial 
jury  of  freeholders  of  the  vicinage,  with  the  requisite  of 
unanimity  for  conviction,  of  the  right  of  challenge  and 
other  accustomed  requisites  ;  and  no  person  shall  be  held 
to  answer  for  a  capital  or  otherwise  infamous  crime  unless 
on  a  presentment  or  indictment  by  a  grand  jury  ;  but  if  a 
crime  be  committed  in  any  place  in  the  possession  of  an 
enemy,  or  in  which  an  insurrection  may  prevail,  the  in- 
dictment and  trial  may  by  law  be  authorized  in  some 
other  place  within  the  same  State  ;('•)  and  if  it  be  com- 
mitted in  a  place  not  within  a  State,  the  indictment  and 
trial  may  by  law  be  at  such  place  or  places  as  the  law 
may  have  directed." 

[7th,  Clause  3.] — "  In  suits  at  common  law  the  right 
of  trial  by  jurv  shall  be  preserved."  (iV.  Y.  Journal  and 
Weekly  Re<j.,  Vol  43,  No.  36,  July  30,  1789.) 

[The  Committee  of  the  Whole  to  whom  this  report 
was  referred,  made  some  alterations,  which  appear  in  the 
following  :] 

House  Bill. 
'\  Monday,  24^A  Augusf,  1789. 

Art.  6.  No  soldier  shall,  in  time  of  peace,  be  quartered 
in  any  house  Avithout  the  consent  of  the  owner ;  nor  in 
time  of  war,  but  in  a  manner  to  be  prescribed  by  law. 

Art.  8.  No  person  shall  be  subject,  except  in  case  of 
impeachment,  to  more  than  one  trial,  or  one  punishment, 
for  the  same  offence ;  nor  shall  be  compelled,  in  any 
criminal  case,  to  be  a  witness  agaiust  himself;  nor  be 
deprived  of  life,  liberty,  or  property,  without  due  process 
of  law ;  nor  shall  private  property  be  taken  for  public 
use,  without  just  compensation. 

Art.  9.  In  all  criminal  prosecutions,  the  accused  shall 
enjoy  the  right  to  a  speedy  and  public  trial,  to  be 
informed  of  the  nature  and  cause  of  the  accusation,  to 
be  confronted  with  the  witnesses  against  him,  to  have 
compulsory  process  for  obtaining  witnesses  in  his  favor, 
and  to  have  the  assistance  of  counsel  for  his  defence. 

Art.  10.  [Same  as  in  the  Eeport  of  the  Committee  of 
the  Whole  7th,  clause  2,  supra,  to  the  '^   {lb.,  v.  43,  no.  40.)] 


Acts  Relating  to  Military  Ci.)mmi^Hion,'<.  37 

[This  bill  was  sent  to  the  Senate,  which  returned  the 
following  to  the  House  :] 

Senate  Bill. 

"Art.  5.  [Same  as  House  Bill,  Art.  6.] 

"  Art.  7.  No  person  shall  be  held  to  answer  for  a  capital, 
or  otherwise  infamous  crime,  unless  on  a  presentment  or 
indictment  of  a  grand  jury,  except  in  cases  arising  in  the 
land  or  naval  forces,  or  in  the  miUtia,  in  time  of  war  or 
public  danger  ;  nor  shall  any  person  be  subject,  for  the 
same  offence,  to  be  twice  put  in  jeopardy  of  life  or  limb  ; 
nor  shall  be  compelled,  in  any  criminal  case,  to  be  a 
witness  against  himself ;  nor  be  deprived  of  life,  liberty, 
or  property,  without  due  process  of  law ;  nor  shall 
private  propert}^  be  taken  for  public  use,  without  just 
compensation. 

"Art.  8.  [Same  as  House  Bill,  Art.  9."  {lb.,  v.  43, 
no.  43.)] 

Sept.  21.  "  The  amendments  of  the  Senate  to  the 
amendments  proposed  by  the  House  to  the  Constitution 
were  then  taken  up ;  some  were  agreed  to,  and  others 
non-concurred.  Messrs.  Madison,  Sherman  and  Yining 
were  appointed  a  Committee  to  confer  with  a  Committee 
of  the  Senate  on  those  amendments  in  which  the  two 
houses  do  not  agree."  (N.  Y.  JounKd  and  Weekly  Reg., 
V.  43,  no.  44,  p.  22.) 

Sept.  24.  "  The  Keport  of  the  Committee  of  Conference 
on  the  subject  of  Amendments  to  the  Constitution  was 
taken  up.  The  committee  advise  to  a  concurrence  in 
the  amendments  of  the  Senate  with  some  amendments." 
{lb.,  no.  45,  p.  2.)  [one  of  which  was  :] 

"Art.  8.  In  all  criminal  prosecutions,  the  accused  shall 
enjoy  the  right  to  a  speedy  and  public  trial,  by  an 
impartial  jury  of  the  State  and  district  wherein  the 
crime  shall  have  been  committed,  which  district  shall 
have  been  previously  ascertained  by  law  ;  and  to  be 
informed  of  the  nature  and  cause  of  the  accusation  ;  to 
be  confronted  with  the  witnesses  against  him  ;  to  have 
compulsory  process  for  obtaining  witnesses  in  his  favor, 
and  to  have  the  assistance  of  counsel  for  his  defence." 
(1  Gale,  915.) 


X. 

Acts  of  Congress,  Kelating  to  Military  Commissions 

AND  Courts  Martial. 
Ad  of  July  22,  1861.     (12  U.  S.  Stat.,  270.) 

§  10.  "  And  be  it  further  enacted,  that  the  general  coni- 
manding  a  separate  department,  or  a  detached  army,  is 


38  Appendix. 

hereby  antliorised  to  appoint  a  military  hoard  or  commis- 
sion, of  not  less  than  three,  or  more  than  five  officers, 
whose  duty  it  shall  be  to  examine  the  capacity,  qualifica- 
tions, propriety  of  conduct,  and  efficiency  of  any  com- 
missioned officer  of  volunteers,  &c.  Provided  always 
that  no  officer  shall  be  eligible  to  sit  on  stick  hoard  or 
commission,  whose  rank  or  promotion  would  in  any  way 
be  affected  by  its  proceedings,  <fec." 

Act  of  Jul)  17,  1832.     (12  IL  S.  Stat.,  598.) 

§  5.  "  The  President  shall  appoint,  by,  and  with  the 
advice  and  consent  of  the  Senate,  a  judge-advocate  gene- 
ral, with  the  rank,  pay,  and  emoluments  of  a  colonel  of 
cavalry,  to  whose  office  shall  be  returned  for  revision,  the 
records  ami  proceedings  of  all  courts  martial  and  military 
commissions,  and  where  a  record  shall  be  kept  of  all  pro- 
ceedings had  thereupon  ;  and  no  sentence  of  death,  or 
imprisonment  in  the  penitentiary,  shall  be  carried  into 
execution  until  the  same  shall  have  been  approved  by 
the  President" 

Act  of  March  3,  1863,     (12  U.  S.  Stat,,  736.) 

§  30.  "  In  time  of  war,  insurrection  or  rebellion,  mur- 
der &c.,  shall  be  punishable  by  the  sentence  of  a  general 
court  martial  or  milHary  commission,  when  committed  by 
persons  who  are  in  the  military  service  of  the  United 
States,  and  subject  to  the  articles  of  war  ;  and  the  punish- 
ment for  such  offences  shall  never  be  less  than  those  in- 
flicted by  the  laws  of  the  State,  territory  or  district,  in 
which  they  may  have  been  committed." 

Act  of  March  3,  1863.     (12  U.  S.  Stat.,  737.) 

§  37.  "  All  persons,  who  in  time  of  war  or  rebellion 
against  the  supreme  authority  of  the  United  States,  shall 
be  found  lurking  or  acting  as  sjiies,  in  or  about  any  of 
the  fortifications,  posts,  quarters,  or  encampments  of  any 
of  the  armies  of  the  United  States,  or  elsewhere,  shall  be 
triable  by  a  general  court  martial  or  military  commission, 
and  shall  upon  conviction  suffer  death." 

Act  of  July  2,  1864.     (13  U.  S.  Stat,  356.) 

''  The  provisions  of"  (1863,  ch.  75,  §  21),  ''  shall  apply 
as  well  to  the  sentences  of  military  com.missio77S  as  to 
those  of  courts  martial ;  and  hereafter  the  commanding 
general  in  the  field,  or  the  commander  of  a  department, 


Acts  Relating  to  Militanj  Commissions.  39 

shall  have  power  to  carry  into   execution  all  sentences 
against  guerilla  marauders/'  &c. 

Act  of  Feb.  13,  1862.     (13  U.  S.  Stat.,  339,  340.) 

§  4.  ''  The  2d  section  of  the  Act  of  the  10th  of  April, 
1806  -^'-[2  U.  S.  Stat.,  p.  371],  is  hereby  amended  so  as  to 
read  as  follows  : 

"  In  time  of  war  or  rebellion  against  the  supreme  au- 
thority of  the  United  States,  all  persons  who  shall  be 
found  lurking  as  spies,  or  acting  as  such  in  or  about  the 
fortifications,  encampments,  posts,  quarters,  or  head- 
quarters of  the  armies  of  the  United  States,  or  any  of 
them  within  any  part  of  the  United  States  which  has 
been  or  may  be  declared  to  be  in  a  state  of  insurrection 
by  proclamation  of  the  President  of  the  United  States, 
shall  suffer  death  by  sentence  of  a  general  court  martial." 

Act  of  March  3,  1863,  ch.  75,  §  21.    (12  U.  S.  Stat.,  735.) 

§  21.  "  So  much  of  §  5"  (of  laws  of  1862,  ch.  201,  12 
U.  S.  Stat.,  p.  598,)  "  as  requires  the  approval  of  the 
President  to  carry  into  execution  the  sentence  of  a  court 
martial,  be,  and  the  same  is  hereby  repealed  as  far  as  re- 
lates to  carrying  into  execution  the  sentence  of  any  court- 
martial  against  any  person  convicted  as  a  spy  or  deserter, 
or  of  mutiny  or  murder ;  and  hereafter  sentences  in  pun- 
ishment of  these  oifences  may  be  carried  into  execution 
upon  the  approval  of  the  commanding  general  in  the 
field." 

Articles  of  War.     (2  U.  S.  Stat.,  367.) 

"  Aet.  64. — General  courts  martial  may  consist  of  any 
number  of  commissioned  ofiicers,  from  5  to  13  inclusively, 
but  they  shall  not  consist  of  less  than  thirteen,  where 
that  number  can  be  convened  without  manifest  injury  to 
the  service. 

"  Art.  65. — Any  general  ofiicer  commanding  an  army, 
or  colonel  commanding  a  separate  department,  may  ap- 
point general  courts  martial  whenever  necessary." 

4  U.  S.  Stat.,  417. 

Art.  65,  amended  :   "  Whenever  a  general  command- 


*  Which  declared  that  "In  time  of  war  all  persons  not  citizens  of  or 
owing  allegiance  to  the  United  States  of  America,  who  shall  be  found 
lurking  as  spies,  in  or  about  the  fortifications  or  encampments  of  the 
armies  of  the  United  States,  or  any  of  them,  shall  suffer  death  according  to 
the  law  and  us.ige  of  nations  by  sentence  of  a  general  court  martial."' 


40  Appendix. 

ing  an  army,  or  a  colonel  commanding  a  separate  depart- 
ment, sliali  be  the  accuser  or  prosecutor  of  any  officer  in 
the  army  of  the  United  States  under  his  command,  the 
general  court  martial  for  the  ta'ial  of  such  officer  shall  be 
appointed  by  the  President  of  the  United  States." 


XI. 


PnOCLAMATIONS   AND  OrDERS  OF  THE  PRESIDENT  PvELATING 

TO  Habeas  Corpus,  &c. 

Proclamation  of  Sept.  24,  1862.  (Latvrence's  Wheaton  on 
Intentational  Law,  p.  522.  Judge  Advocate  Bingham's 
Argument  in  Booth's  case,  p.  22.)  • 

"  By  the  President  of  the  United  States  of  America  : 

'*A  PROCLAMATION. 
"  Whereas  it  has  become  necessary  to  call  into  service 
not  only  volunteers,  but  also  portions  of  the  militia  of  the 
United  States,  by  a  draft,  in  order  to  suppress  the  insur- 
rection existing  in  the  United  States,  and  disloyal  persons 
are  not  adequately  restrained  by  the  ordinary  process  of 
law  from  hindering  this  measure,  and  from  giving  aid  and 
comfort  in  various  ways  to  the  insurrection  : 

"  Now,  therefore,  be  it  ordered,  that  during  the  existing 
insurrection,  and  as  a  necessary  means  for  suppressing 
the  same,  all  rebels  and  insurgents,  their  aiders  and 
abettors,  within  the  United  States,  and  all  persons  dis- 
couraging volunteer  enlistments,  resisting  miiitia  drafts, 
or  guilty  of  any  disloyal  practice,  affording  aid  and  com- 
fort to  rebels  against  the  authority  of  the  United  States, 
shall  be  subject  to  martial  law  and  liable  to  trial  and 
punishment  by  courts  martial  or  military  commission. 

"  2d. — That  the  writ  of  habeas  corpus  is  suspended  in 
respect  to  all  persons  arrested,  or  who  are  now,  or  here- 
after during  the  rebellion  shall  be,  imprisoned  in  any 
fort,  camp,  arsenal,  military  prison,  or  other  place  of 
confinement,  by  any  military  authority,  or  by  the  sentence 
of  any  court  martial  or  military  commission. 

"  In  witness  whereof  I  have  hereunto  set  my  hand  and 
caused  the  Seal  of  the  United  States  to  be  affixed. 

"  Done  at  the  City  of  Washington,  this  24tli  Septem- 
ber, A.  D.  1862,  and  of  the  Independence  of  the  United 
States  the  eighty-seventh. 

"  ABRAHAM  LINCOLN. 
"  By  the  President : 
"  William  H.  Seward, 

"  Secretary  of  State.'' 


Proclamation.  .41 

Proclamation  of  Mm]  10,  1861.    (12  IJ.  S.  Stat,  App.  No, 

7,  p.  iv,) 

"  By  the  President  of  the  United  States  of  America: 
"A  PKOCLAMATION, 

"  Whereas  an  insurrection  exists  in  the  State  of 
Florida,  by  which  the  lives,  liberty,  and  proj^erty  of 
loyal  citizens  of  the  United  States  are  endangered  ; 

"And  whereas  it  is  deemed  proper  that  all  needful 
measures  should  be  taken  for  the  protection  of  such 
citizens  and  all  officers  of  the  United  States  in  the  dis- 
charpje  of  their  public  duties  in  the  State  ^foresaid  : 

"  Now,  therefore,  be  it  known  that  I,  Abraham  Lin- 
coln, President  of  the  United  States,  do  hereby  direct 
the  commander  of  the  forces  of  the  United  States  on  the 
Florida  coast,  to  permit  no  pc  rson  to  exercise  any  office 
or  authority  upon  the  islands  of  Key  West,  the  Tortugas, 
and  Santa  Rosa,  which  may  be  inconsistent  with  the  Laws 
and  Constitution  of  the  United  States,  authorizing  him 
at  the  same  time,  if  he  shall  find  it  necessary,  to  suspend 
there  the  writ  of  habeas  corpus,  and  to  remove  from  the 
vicinity  of  the  United  States  fortresses  all  dangerous  or 
suspected  persons. 

"  In  witness  whereof,  I  have  hereunto  set  my  hand,  and 
caused  the  Seal  of  the  United  States  to  be  affixed. 

"  Done  at  the  City  of  Washington,  this  tenth  day  of 
|-  n  May,  in  the  year  of  our  Lord  1861,  and  of  the  In- 
^  '    '^    dependence  of  the  United  States  the  eighty-fifth. 

"ABEAHAM  LINCOLN, 
"  By  the  President : 

"  William  H.  Seward, 

"  Secretary  of  State.'' 

Proclamation  of  Sept  15,  1863.  (13  Z7.  S.  Stat.,  App.  No.  5 

p.  iv.) 

"  By  the  President  of  the  United  States  of  America  : 

"  A  PROCLAMATION. 

"  Whereas,  the  Constitution  of  the  United  States  has 
ordained  that  the  privilege  of  the  writ  of  habeas  corpus 
shall  not  be  suspended,  unless  when  in  cases  of  rebellion 
or  invasion,  the  public  safety  may  require  it;  and  whereas, 
a  rebellion  Avas  existing  on  the  third  day  of  March,  1863, 
which  rebellion  is  still  existing  ;  and  whereas,  by  a  stat- 
ute which  was  approved  on  that  day,  [12  U.  S.  Stat.,  755,] 
it  was  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States,  in  Congress  assembled,  that 


42  AppendiXj 

during  the  present  insurrection,  tlie  President  of  tire 
United  States,  whenever  in  his  judgment  the  public  safety 
may  require  it,  is  authorized  to  suspend  the  privilege  of 
the  writ  of  habeas  corpus  in  any  case  throughout  the 
United  States,  or  any  part  thereof  ;  and  whereas,  in  the 
judgment  of  the  President,  the  public  safety  does  require 
that  the  privilege  of  the  said  writ  shall  now  be  suspended 
through oiit  the  United  States,  in  the  cases  where,  by  the 
authority  of  the  President  of  the  United  States,  military, 
naval,  and  civil  officers  of  the  United  States,  or  any  of 
them,  hold  persons  under  their  command,  or  in  their  cus- 
tody, either  as  prisoners  of  war,  spies,  or  aiders  or  abettors 
of  the  enemy,  or  officers,  soldiers,  or  seamen  enrolled  or 
drafted,  or  mustered  or  enlisted  in,  or  belonging  to,  the 
land  or  naval  forces  of  the  United  States,  or  as  deserters 
therefrom,  or  otherwise  amenable  to  military  law,  or  the 
rules  and  articles  of  war,  or  the  rules  and  regulations 
prescribed  for  the  military  or  naval  forces,  by  authority 
o-f  the  President  of  the  United  States,  or  for  resisting  a 
draft,  or  for  any  other  offence  against  the  military  or 
naval  service  : 

"Now,  therefore,  I,  Abraham  Lincoln,  President  of 
the  United  States,  do  hereby  proclaim  and  make  known 
to  all  whom  it  may  concern,  that  the  privilege  of  the  writ 
of  habeas  corpus  is  suspended  throughout  the  United 
States  in  the  several  cases  before  mentioned,  and  that 
this  suspension  will  continue  throughout  the  duration  of 
the  present  rebellion,  or  until  this  proclamation  shall,  by 
a  subsequent  one  to  be  issued  by  the  President  of  the 
United  States,  be  modified  or  revoked.  And  I  do  hereby 
require  all  magistrates,  attorneys,  and  other  civil  officers 
within  the  United  States,  and  all  officers  and  others  in 
the  military  and  naval  services  of  the  United  States,  to 
take  distinct  notice  of  this  suspension,  and  to. give  it  full 
effect,  and  all  citizens  of  the  United  States  to  conduct 
and  govern  themselves  accordingly,  and  in  conformity 
with  the  Constitution  of  the  United  States  and  the  laws 
of  Congress  in  such  case  made  and  provided. 

"  In  testimony  whereof,  I  have  hereunto  set  my  hand, 

and  caused  the  seal  of  the  United  States  to  be 

[l.  s.]    affixed,  this  fifteenth   day  of  September,  in  the 

year  of  our  Lord  1863,  and  of  the  Independence 

of  the  United  States  of  America  the  eighty-eighth. 

"ABRAHAM  LINCOLN. 
"  By  the  President : 

"William  H.  Seward, 

"  Secretary  of  Stated 


Prodamations,  4B 

Proclamation  of  July  5,   1864.      (13   U,  S,   Stat.,   App, 
No,  15,  p.  xii.) 

*'  By  the  President  of  the  United  States  of  America  : 

"A  PEOCLAMATION, 

*'  Wherens,  by  a  proclamation  which  was  issued  on  th« 
15th  day  of  April,  1861,  the  President  of  the  United  States 
announced  and  declared  that  the  laws  of  the  United  States 
had  been  for  some  time  past,  and  then  were,  opposed, 
and  the  execution  thereof  obstructed,  in  certain  States, 
therein  mentioned,  by  combinations  too  powerful  to  be 
suppressed  by  the  ordinary  course  of  judical  proceedings 
or  by  the  powers  vested  in  the  marshals  by  law ; 

*'And  whereas,  immediately  after  the  issuing  of  the 
said  proclamation,  the  land  and  naval  forces  of  the 
United  States  were  put  into  activity  to  suppress  the  said 
insurrection  and  rebellion ; 

"And  whereas  the  Congress  of  the  United  States,  by 
an  Act  approved  on  the  3d  day  of  March,  1863,  did  enact 
that  during  the  said  rebellion  the  President  of  the  United 
States  whenever  in  his  judgment  the  public  safety  may 
require  it,  is  authorized  to  suspend  the  privilege  of 
habeas  corpus  in  any  case  throughout  the  United  States, 
or  in  any  part  thereof; 

"  And  whereas  the  said  insurrection  and  rebellion  still 
continues,  endangering  the  existence  of  the  Constitution 
and  Government  of  the  United  States  ; 

"  And  whereas  the  military  forces  of  the  United  States 
are  now  actively  engaged  in  suppressing  the  said  insur- 
rection and  rebellion,  in  various  parts  of  the  States  where 
the  said  rebellion  has  been  successful  in  obstructing  the 
laws  and  public  authorities,  especially  in  the  States  of 
Virginia  and  Georgia  ; 

"  And  whereas,  on  the  fifteenth  day  of  September  last, 
the  President  of  the  United  States  duly  issued  his  pro- 
clamation, wherein  he  declared  that  the  privilege  of  the 
writ  of  habeas  corpus  should  be  suspended  throughout 
the  United  States,  in  cases  where,  by  the  authority  of  the 
President  of  the  United  States,  military,  naval,  and  civil 
officers  of  the  United  States,  or  any  of  them,  hold  per- 
sons under  their  command,  or  in  their  custody,  either  as 
prisoners  of  war,  spies,  or  aiders  or  abettors  of  the  ene- 
my, or  officers,  soldiers,  or  seamen  enrolled  or  drafted, 
or  mustered,  or  enlisted  in,  or  belonging  to,  the  land  or 
naval  forces  of  the  United  States,  or  as  deserters  there- 
from, or  otherwise  amenable  to  military  law,  or  the  rules 
and  articles  of  war,  or  the  rules  or  regulations  prescribed 
for  the   military  or  naval  services,  by  authority  of  the 


44  Jj^jyendix. 

President  of  tlie  United  States,  or  for  resisting  a  draft, 
or  for  any  other  offence  against  tlie  military  or  naval 
service  ; 

"  And  whereas  many  citizens  of  the  State  of  Kentucky 
have  joined  the  forces  of  the  insurgents,  and  such  insur- 
gents have,  on  several  occasions,  entered  tlie  said  State 
of  Kentucky  in  large  force,  and,  not  without  aid  and  com- 
fort, furnished  by  disaffected  and  disloyal  citizens  of  the 
United  States,  residing  therein,  have  not  only  greatly 
disturbed  the  public  peace,  but  have  overborne  the  civil 
authorities  and  made  flagrant  civil  war,  destroying  prop- 
erty and  life  in  various  parts  of  that  State  ; 

"  And  whereas  it  has  been  made  known  to  the  Presi- 
dent of  the  United  States,  by  the  ofncers  commanding 
the  national  armies,  that  combinations  have  been  formed 
in  the  said  State  of  Kentucky,  with  a  purpose  of  inciting 
rebel  forces  to  renew  the  said  operations  of  civil  w^ar 
wdthin  the  said  State,  and  thereby  to  embarrass  the 
United  States  armies  now  operating  in  the  said  States  of 
Virginia  and  Georgia,  and  even  to  endanger  their  safety: 

"  Now,  therefore,  I,  Abraham  Lincoln,  President  of  the 
United  States,  by  virtue  of  the  authority  vested  in  me  by 
the  Constitution  and  laws,  do  hereby  declare  that,  in  my 
judgment,  the  public  safety  especially  requires  that  the  sus- 
pension of  the  privilege  of  the  writ  of  lalea.s-  corpus,  so  pro- 
claimed in  the  said  proclamation  of  the  fifteenth  of  Sep- 
tember, 1863,  be  made  effectual  and  be  duly  enforced  in 
and  throughout  the  said  State  of  Kentucky,  and  that 
martial  law  be  for  the  present  established  therein.  I 
do,  therefore,  hereby  require  of  the  military  officers  in 
the  said  State,  that  the  privilege  of  the  writ  of  habeas 
corpus  be  effectually  suspended  within  the  said  State, 
according  to  the  aforesaid  proclamation,  and  that  mar- 
tial law  be  established  therein,  to  take  effect  from  the 
date  of  this  proclamation,  the  said  suspension  and  estab- 
lishment of  martial  law^  to  continue  until  this  proclama- 
tion shall  be  revoked  or  modified,  but  not  beyond  the 
period  when  the  said  rebellion  shall  have  been  suppres- 
sed, or  come  to  an  end.  And  I  do  hereby  require  and 
comma^nd,  as  well  all  military  ofiicers,  as  all  civil  officers, 
existing  or  found  within  the  said  State  of  Kentucky,  to 
take  notice  of  this  proclamation,  and  to  give  full  effect 
to  the  same. 

"  The  martial  law  herein  proclaimed,  and  the  things  in 
that  respect  herein  ordered,  will  not  be  deemed  or  taken 
to  interfere  with  the  holding  of  lawful  elections,  or  watli 
the   proceedings   of   the    Constitutional    Legislature   of 


JohriHon  v.  Duncan.  45 

Kentucky,  or  with  the  administration  of  justice  in  the 
courts  of  hiw  existing  therein,  between  citizens  of  the 
United  States,  in  suits  or  proceedings  which  do  not  affect 
the  niihtary  operations  or  the  constituted  authorities  of 
the  Government  of  the  United  States. 

"  In  testimony  whereof,  I  have  hereunto  set  my  hand, 
I  -,  and  caused  the  seal  of  the  United  States  to  be 
'    "    ■ '  affixed. 

"  Done  at  the  City  of  Washington,  this  fifth  day  of 
July,  in  the  year  of  our  Lord,  1864,  and  of  the  Indepen- 
dence of  the  United  States  the  eighty-ninth. 

"  ABRAiSAM  LINCOLN. 
"  By  the  President  : 

"  William  H.  Seward, 

"  Secretary  of  State.'" 


XII. 


Johnson  vs.  Duncan,  et  al's  Syndics  ;  3  Martin's  La. 
Rep.,  520. 

Martin,  J.  A  motion  that  the  Court  might  _  proceed 
in  this  case,  has  been  resisted  on  two  grounds  : 

1.  That  the  cit}^  and  its  environs  Avere,  by  general 
orders  of  the  officer,  commanding  the  militai;y  district, 
put,  on  the  15th  of  December  last,  under  strict  martial 
taw. 

2.  That,  by  the  Third  Section  of  an  Act  of  Assembly, 
approved  on  the  18th  day  of  December  last,  all  proceed- 
ings in  any  civil  case  are  suspended. 

1.  At  the  close  of  the  argument,  on  Monday  last,  we 
thought  it  our  duty,  lest  the  smallest  delay  should  coun- 
tenance the  idea  that  this  Court  entertain  any  doubt,  on 
the  first  ground,  instantl}^  to  declare,  viva  voce  (although 
the  practice  is  to  deliver  our  opinions  in  writing),  that  the 
exercise  of  an  authority,  vested  by  the  law  in  this  Court, 
could  not  be  suspended  by  any  man. 

In  any  other  State  but  this,  in  the  population  of  which 
are  mauy  individuals,  who,  not  being  perfectly  acquainted 
with  their  rights,  may  easily  be  imposed  on,  it  could  not 
be  expected  that  the  judges  of  this  Court  should,  in  com- 
plying with  the  constitutional  injunction  in  all  cases  to 
adduce  the  reasons  on  luidcli  their  judgment  is  founded,  take 
up  much  time  to  show  that  this  Court  is  bound  utterly  to 
disregard  what  is  thus  called  Martial  Law  ;  if  anything 


46  Appendix. 

be  meant,  thereby,  but  the  strict  enforcing  of  the  rules 
and  articles  for  the  government  of  the  army  of  the  United 
States,  established  by  Congress,  or  any  act  of  that  body, 
relating  to  military  matters,  on  all  individuals  belonging  to 
the  army  or  militia  in  the  service  of  the  United  States.  Yet, 
we  are  told  that,  by  this  proclamation  of  martial  law,  the 
officer  who  issued  it  has  conferred  on  himself,  over  all  his 
fellow-citizens,  within  the  space  which  he  has  described, 
a  supreme  and  unlimited  power,  which,  being  incom- 
p  atible  with  the  exercise  of  the  functions  of  civil  magis- 
trates, necessarily  suspends  them. 

This  bold  and  novel  assertion  is  said  to  be  supported 
by  the  Ninth  Section  of  the  First  Article  of  the  Consti- 
tution of  the  United  States,  in  which  are  described 
the  limitations  of  the  power  of  the  Legislature  of  the 
Union.  It  is  there  provided,  that  "the  privilege  of  the 
writ  oi  habeas  corpus  shall  not  be  suspended,  unless  when, 
in  cases  of  invasion  or  rebellion,  the  public  safety  may 
require  it."  We  are  told  that  the  commander  of  the 
military  district  is  the  person  who  is  to  suspend  the  writ, 
and  is  to  do  so  whenever,  in  his  judgment,  the  public 
safety  appears  to  re^quire  it ;  that,  as  he  may  thus  par- 
alyze the  arm  of  the  justice  of  his  countr}^  in  the  most 
important  case — the  protection  of  the  personal  liberty 
of  the  citizen-  -it  follows,  that,  as  he  who  can  do  the 
more  can  do  the  les-^,  he  can  also  suspend  all  other 
functions  of  the  civil  magistrate ;  which  he  does,  by  his 
proclamation  of  martial  law. 

This  mode  of  reasoning  varies,  toto  ccelo,  from  the  de- 
cision of  the  Supreme  Court  of  the  United  States,  in  the 
case  of  Sivartoid  and  Bollinan,  arrested  in  this  city,  in 
1806,  by  General  Wilkinson.  The  Court  there  declared, 
that  the  Constitution  had  exclusively  vested  in  Congress 
the  right  of  suspending  the  privilege  of  the  writ  of  habeas 
corpus,  and  that  body  was  the  sole  judge  of  the  necessity 
that  called  for  the  suspension.  "  If,  at  any  time,"  said 
the  Chief  Justice,  "the  public  safety  shall  require  the  sus- 
pension of  the  powers  vested  in  the  Courts  of  the  United 
States  by  this  Act  (the  Habeas  Corpus  Act),  it  is  for  the 
Legislature  to  saij  so.  This  question  depends  on  political 
considerations,  on  which  the  Legislature  is  to  decide. 
Till  the  legislative  will  be  expressed,  this  Court  can  only 
see  its  duties,  and  must  obey  the  law.     (4  Cranch,  101.) 

The  high  authority  of  this  decision  seems  however  to  be 
disregarded  ;  and  a  contrary  opinion  is  said  to  have  been 
lately  acted  upon,  to  the  distress  and  terror  of  the  good 
people  of  this  State  ;  it  is  therefore  meet  to  dispel  the 
clouds  which  designing  men  endeavor  to  cast  on  this 


Johnson  v.  Duncan,  .  47 

article  of  tbe  Constitution,  that  the  people  should  know 
that  their  rights,  thus  defined,  are  neither  doubtful  or  in- 
secure, but  supported  on  the  clearest  principles  of  our 
laws. 

Approaching,  therefore,  the  question,  as  if  I  were  with- 
out the  above  conclusive  authority,  I  find  it  provided  by 
the  Constitution  of  this  State  that  "  no  power  of  suspend- 
ing tliQ  laws  of  this  State  shall  be  exercised,  unless  by  the 
Legislature,  or  under  its  authority."  The  proclamation 
of  martial  law,  therefore,  if  intended  to  suspend  the  func- 
tions of  this  Court  or  its  members,  is  an  attempt  to  exer- 
cise powers  thus  exclusively  vested  in  the  Legislature, 
I  therefore  cannot  hesitate  in  saying  that  it  is  in  this  re- 
spect null  and  void.  If,  however,  there  be  aught  in  the 
Constitution  or  laws  of  the  United  States  that  really  au- 
thorizes the  commanding  officer  of  a  military  district 
to  suspend  the  laws  of  this  State,  as  that  Constitution 
and  these  laws  are  paramount  to  those  of  the  State  they 
must  regulate  the  decision  of  this  Court. 

This  leads  me  to  the  examination  of  the  power  of  sus- 
pending the  writ  of  habeas  corpus,  and  that  which  it  is 
said  to  include,  of  proclaiming  martial  law,  as  noticed  in 
the  Constitution  of  the  United  States.  As  in  the  whole 
article  cited,  no  mention  is  made  of  the  power  of  any 
other  branch  of  government  but  the  Legislature,  it  can- 
not be  said  that  any  of  the  limitations  which  it  contains 
extend  to  any  of  the  other  branches.  Iniquum  est  perimi 
de  jjacto  id  de  quo  cogifatum  non  est.  If,  therefore,  this 
suspending  power  exist  in  the  executive  (under  whose  au- 
thority it  has  been  endeavored  to  exercise  it)  it  exists 
without  any  limitation,  then  the  President  possesses  with- 
out a  limitation  a  power  which  the  Legislature  cannot 
exercise  without  a  limitation.  Thus  he  possesses  a 
greater  power  alojie  than  the  House  of  Representatives, 
the  Senate  and  himself  jointly. 

Again  :  The  power  of  repealing  a  law  and  that  of  sus- 
pending it  (which  is  a  partial  repeal)  are  legislative 
powers.  For  eodem  modo,  quo  quid  constituitur,  eodem 
modo  destruitur.  As  every  legislative  power  that  may  be 
exercised  under  the  Constitution  of  the  United  States,  is 
exclusively  vested  in  Congress,  all  others  are  retained  by 
the  people  of  the  several  States. 

In  England,  at  the  time  of  the  invasion  of  the  pre- 
tender, assisted  by  the  forces  of  hostile  nations  the  habeas 
corpus  act  was  suspended,  but  the  executive  did  not 
thus  of  itself  stretch  its  own  authority,  the  precaution 
was  deliberated  upon  and  taken  by  the  representatives 
of   the  people.    Delolme   409.     And   there    the  power  is 


48  Appendix. 

safely  lodged  without  tlie  danger  of  its  being  abused. 
Parliament  may  repeal  the  law  on  which  the  safety  of 
the  people  depends  ;  but  it  is  not  their  own  caprices  and 
arbitrary  humours  of  other  men  which  they  will  have 
gratified,  when  the}'  shall  have  thus  overthrown  the  col- 
umns of  public  liberty.  Id.  275. 

If  it  be  said  that  the  laws  of  war,  being  the  laws  of  the 
United  States,  authorize  the  proclamation  of  Martial 
Law,  I  answer  that  in  peace  or  in  war,  no  law  can  be 
enacted  but  by  the  Legislative  power.  In  England,  from 
whence  the  American  jurist  derives  his  principles  in  this 
respect,  "  Martial  Law  cannot  be  used  without  the  autho- 
rity of  parliament,"  5  Comyns  329.  The  authority  of 
the  monarch  himself  is  insufficient.  In  the  case  of  Grant 
vs.  Sir  C.  Gould,  2  Htn.  BL  69,  which  was  on  a  prohi- 
bition (applied  for  in  the  Court  of  Common  Pleas)  to  the 
defendant  as  judge  advocate  of  a  Court  Martial,  to  pre- 
vent the  execution  of  the  sentence  of  that  military  tribu- 
nal, the  counsel,  who  resisted  the  motion,  said  it  was  not 
to  be  disputed  that  Martial  Law  can  only  be  exercised  in 
England,  so  far  as  it  is  authorized  by  the  mutiny  act  and 
the  articles  of  war,  all  of  which  are  established  by 
parliament,  or  its  authority,  and  the  court  declared  it 
totally  inaccurate  to  state  any  other  Martial  Law,  as 
having  any  place  whatever  within  the  realm  of  Eng- 
land. In  that  country,  and  in  these  States,  by  Martial 
Law  is  understood  the  jurisprudence  of  these  cases  which 
are  decided  by  military  judges  or  Courts  Martial.  When 
Martial  Law  is  established,  and  prevails  in  any  country, 
said  Lord  Loughborough,  in  the  case  cited,  it  is  totally 
of  a  different  nature  from  that  which  is  inaccurately 
called  Martial  Law,  (because  the  decisions  are  by  a 
Court  Martial)  but  which  bears  no  affinity  to  that  which 
was  formerly  attempted  to  be  exercised  in  this  kingdom, 
toliich  tvas  contrary  to  the  Constitution,  and  which  has 
been  for  a  century  totally  exploded.  When  Martial  Law- 
prevails,  continues  the  judge,  the  authority  under  which 
it  is  exercised  claims  jurisdiction  over  all  military  per- 
sons in  all  circumstances ;  even  their  debts  are  subject  to 
inquiry  by  military  authority,  every  species  of  oifence 
committed  by  any  person  2oho  appertains  to  the  army,  is 
tried,  not  by  a  civil  judicature,  but  by  the  judicature  of 
the  corps  or  regiment  to  which  he  belongs. 

This  is  Martial  Law,  as  defined  by  Hale  and  Black- 
stone,  and  which  the  court  declared  not  to  exist  in  Eng- 
land. Yet,  it  is  confined  to  military  persons.  Here  it  is 
contended,  and  the  court  must  admit,  if  we  sustain  the 
objection,  that  it  extends  to  all  persons,  that  it  dissolves 
for  a  while  the  government  of  the  State. 


Johnson  v.  Duncan.  49 

Yd,  according  to  our  laws,  all  military  courts  are  un- 
der a  constant  subordination  to  the  ordinary  courts  of 
law.  Officers,  who  have  abused  their  powers,  t'lough 
only  in  regard  to  their  own  soldiers,  are  liable  to  prose- 
cution in  a  court  of  law,  and  compelled  to  mike  satisfac- 
tion. Even  any  flagrant  abuse  of  authority  by  members 
of  a  Court  Martial,  when  sitting  to  judge  their  own  peo- 
ple, and  determine  in  cases  enterely  of  a  militiiry  kind, 
makes  them  liable  to  the  animadversion  of  the  Civil 
Judge.  Delolme,  447,  Jacobs  Laiv  Dic^.,  Verho  Court 
3Iartlal.  How  preposterous  then,  the  idea  that  a  mili- 
tary commander  may,  by  his  own  authority,  destroy  the 
tribunal  established  by  law  as  the  asylum  of  those  op- 
pressed by  military  despotism. 

^  /=-  -    ^        '^       "Deebigny,  J.     On  the 

first  question,  that  wdiich  concerns  the  effect  which  the 
publication  of  the  martial  law  has  produced,  with  respect 
to  the  civil  authorities,  we  might  well  have  omitted  giving 
a  written  opinion,  now  that  the  return  of  peace  has  re- 
established the  empire  of  the  laws  ;  but  having  declared, 
on  the  day  on  which  the  discussion  of  this  subject  took 
place,  that  the  powers  vested  in  us  by  law  could  not  be 
suspended  by  any  but  legislative  authority,  it  is  proper 
that  we  should  give  some  explanation  of  the  reasons  on 
which  that  declaration  was  founded. 

"  I  will,  therefore,  examine  how  martial  law  ought  to  be 
understood  among  us,  and  how  far  it  introduces  an  alter- 
ation in  the  ordinary  course  of  government. 

"  To  have  a  correct  idea  of  martial  law  in  a  free 
country,  examples  must  not  be  sought  in  the  arbitrary 
conduct  of  absolute  governments.  The  monarch  who 
unites  in  his  hands  all  the  powers,  may  delegate  to  his 
generals  an  authority  as  unbounded  as  his  own.  But  in 
a  republic  where  the  Constitution  has  fixed  the  extent 
and  limits  of  every  branch  of  government  in  time  of  war, 
as  well  as  of  peace,  there  can  exist  nothing  vague,  uncer- 
tain or  arbitrary  in  the  exercise  of  any  authority. 

"  The  Constitution  of  the  United  States,  in  which  every- 
thing necessary  to  the  general  and  individual  security  has 
been  foreseen,  does  not  provide  that  in  times  of  public 
danger,  the  executive  power  shall  reign  to  the  exclusion 
of  all  others.  It  does  not  trust  into  the  hands  of  a  dic- 
tator the  reins  of  the  government.  The  framers  of  that 
charter  were  too  well  aware  of  the  hazards  to  which  they 
w^ould  have  exposed  the  fate  of  the  republic  by  such  a 
provision  ;  and  had  they  done  it,  the  States  w^ould  have 
rejected  a  constitution  stained  with  a  clause  so  threaten- 
ing to  their  liberties.     In  the  mean  time,  conscious  of  the 


50  Appendix, 

necessity  of  removing  all  impediments  to  the  exercise  of 
the  executive  power,  in  cases  of  rebellion  or  invasieai, 
they  have  permitted  Congress  to  suspend  the  privilege  of 
the  writ  of  habeas  corpus  in  those  circumstances,  if  the 
public  safety  should  require  it.  Thus  far,  and  no  farther, 
goes  the  Constitution.  Congress  has  not  hitherto  thought 
it  necessary  to  authorize  that  suspension. 

"  Should  the  case  ever  happen,  it  is  to  be  supposed  that 
it  would  be  accompanied  with  such  restrictions  as  would 
prevent  auy  wanton  abuse  of  power.  '  In  England,'  (says 
the  author  of  a  justly  celebrated  work  on  the  constitution 
of  that  country,)  'at  the  time  of  the  invasion  of  the  Pre- 
tender, assisted  by  the  forces  of  hostile  nations,  the  haleas 
corpus  act  was  indeed  suspended  ;  but  the  executive  power 
did  not  thus  of  itself  stretch  its  own  authority  ;  the  pre- 
caution was  deliberated  upon,  and  taken  by  the  repre- 
sentatives of  the  people  ;  and  the  detaining  of  individuals, 
in  consequence  of  the  suspension  of  the  act,  was  limited 
to  a  fixed  time.  Notwithstanding  the  just  fears  of  inter- 
nal and  hidden  enemies,  which  the  circumstances  of  the 
times  might  raise,  the  deviation  from  the  former  course 
of  law  was  carried  no  further  than  the  single  point  we 
have  mentioned.  Persons  detained  by  order  of  the  gov- 
ernment were  to  be  dealt  with  in  the  same  manner  as 
those  arrested  at  the  suit  of  private  individuals  ;  the  pro- 
ceedings against  them  were  to  be  carried  on  no  other- 
wise than  in  a  public  place  ;  they  were  to  be  tried  by 
their  peers,  and  to  have  all  the  usual  legal  means  of  de- 
fence allowed  to  them,  such  as  calling  of  witnesses,  per- 
emptory challenge  of  jurors,  etc'  And  can  it  be  asserted, 
that,  while  British  subjects  are  thus  secured  against  op- 
pression in  the  worst  of  times,  American  citizens  are  left 
at  the  mercy  of  the  will  of  an  individual,  who  may,  in 
certain  cases,  the  necessity  of  ivhicli  is  to  he  judged  of  by 
himself,  assume  a  supreme,  overbearing,  unbounded 
power  ?  The  idea  is  not  only  repugnant  to  the  princi- 
ples of  any  free  government,  but  subversive  of  the  very 
foundations  of  our  own. 

"  Under  the  Constitution  and  laws  of  the  United  States, 
the  President  has  a  right  to  call,  or  cause  to  be  called,  into 
the  service  of  the  United  States,  even  the  whole  militia  of 
any  part  of  the  Union,  in  case  of  invasion.  This  power, 
exercised  here  by  his  delegate,  has  placed  all  the  citizens 
subject  to  militia  duty  under  military  authority  and  mili- 
tary rule.  Thaty  I  conceive  to  be  the  extent  of  the  mar- 
tial law,  beyond  which  all  is  usurpation  of  power.  In 
that  state  of  things  the  course  of  judicial  proceedings  is 
certainly  much  shackled,  but  the  judicial  authority  exists. 


Johnson  v.  Duncan.  51 

and  oiiglit  to  be  exercised  wlienever  it  is  practicable. 
Even  where  circumstances  have  made  it  necessary  to  sus- 
pend the  privilege  of  the  writ  of  habeas  corpus,  and  such 
suspension  has  been  pronounced  bv  the  competent  au- 
thority, there  is  no  reason  wdiy  the  administration  of  jus- 
tice generally  should  be  stopped.  For,  because  the  citi- 
zens are  deprived  temporarily  of  the  protection  of  the 
tribunals  as  to  the  safety  of  their  persons,  it  does  by  no 
means  follow  that  they  cannot  have  recourse  to  them  in 
all  other  cases. 

"  The  pi'oclaination  of  the  martial  law,  therefore,  can- 
not have  any  other  effect  than  that  of  placing  under  mili- 
tary authority,  all  the  citizens  subject  to  militia  service. 
It  is  in  that  sense  alone  that  the  vague  expression  of 
martial  law  ought  to  be  understood  among  us.  To  give 
it  any  larger  extent  would  be  trampling  upon  the  Consti- 
tution and  laws  of  our  country. 

"  But  the  counsel  for  the  appellant,  to  support  his  as- 
sertion that,  in  the  circumstances  then  existing,  the  Court 
could  not  administer  justice,  went  further  and  said  that 
the  City  of  New  Orleans  had  become  a  camp,  since  it  had 
pleased  the  General  of  the  Seventh  Military  District  to 
declare  it  so,  and  that  within  the  precincts  of  a  camp 
there  can  exist  no  other  authority  than  that  of  the  com- 
manding ofScer.  If  the  premises  were  true,  the  conse- 
quence would  certainly  follow.  But  the  abuse  of  w^ords 
cannot  change  the  situation  of  things.  A  camp  is  a  space 
of  ground  occupied  by  an  army  for  their  temporary  hal^- 
tation,  while  they  keep  the  field.  That  space  has  limits ; 
it  does  not  extend  beyond  the  ground  actually  occupied 
by  the  army.  The  camp  of  the  American  army,  during 
the  invasion  of  our  territory  by  the  British,  was  placed  at 
a  distance  of  four  miles  below  the  city.  During  that  time 
the  city  might  be  considered  a  besieged  place,  having  an 
entrenched  camp  in  front.  But  the  transformation  of  the 
city  itself  into  a  camp  by  the  mere  declaration  of  the 
General,  is  no  more  to  be  conceived  than  would  the  trans- 
formation of  a  camp  into  a  city  by  the  same  means. 

"  It  is,  therefore,  our  opinion,  that  the  authority  of 
courts  of  justice  has  not  been  suspended  of  right  by  the 
proclamation  of  the  martial  law,  nor  by  the  declaration 
of  the  General  of  the  Seventh  Military  District,  that  the 
City  of  New  Orleans  w^as  a  camp ;  and  we  now  repeat 
what  we  declared  when  the  subject  was  discussed  :  '  That 
the  powers  vested  in  us  by  law  can  be  suspended  by  none 
but  the  legislature.'  " 


52  Appendix. 


xiir 


The   Origin  of  the   Suspension  Act  in  the  English 

PAELIAJfENT. 

March  1,  1688.  "  Mr.  Hamden,  one  of  his  Majesty's 
most  honorable  Privy  Council,  acquainted  the  House 
that  he  had  a  message  from  his  Majesty  :  '  That  his 
Majesty  hath  had  credible  information,  that  there  are 
several  persons  in  and  about  this  town  that  keep  private 
meetings  and  cabals,  to  conspire  against  the  government, 
and  for  the  assistance  of  the  late  King  James  ;  that  his 
Majesty  has  caused  some  of  those  persons  to  be  already 
apprehended  and  secured,  upon  suspicion  of  high  trea- 
son, and  that  he  thinks  he  may  see  cause  to  do  so  by 
others,  within  a  little  time  ;  but  his  Majesty  is  between  two 
great  difficulties  in  this  case  ;  for  that,  if  he  should  set 
those  persons  at  liberty  that  are  apprehended,  he  would 
be  wanting  to  his  ow^n  safety,  and  the  safety  of  his 
government  and  people  ;  on  the  other  hand,  if  he  should 
detain  them,  he  is  unwilling  to  do  anything  but  what 
shall  be  fully  warranted  by  law,  which  he  hath  so  often 
declared  he  will  preserve  ;  and  that,  therefore,  if  those 
persons  should  deliver  themselves  by  the  Act  of  Haleas 
Corpus,  there  would  be  another  difficulty.  That  his 
Majesty  is  likewise  unwilling  that  excessive  bail  should 
bg  taken  in  this  case,  his  Majesty  remembering  that  to 
be  one  article  of  the  grievances  presented  to  him  ;  that 
ordinary  bail  will  not  be  sufficient ;  for  men  that  carry 
on  such  designs,  in  hopes  of  succeeding,  will  not  stick  at 
forfeiting  a  small  sum  ;  and  that,  this  falling  out  when 
the  Parliament  is  sitting,  his  Majesty,  therefore,  thought 
fit  to  ask  the  advice  of  this  House  therein,  and  intends  to 
advise  with  the  Lords  also.' 

'^Resolved,  nem.  con.,  That  the  humble  thanks  of  this 
House  be  returned  to  his  Majesty,  for  his  most  gracious 
message  in  desiring  the  advice  of  this  House. 

''Resolved,  That  a  temporary  bill  be  brought  in,  to 
empower  his  Majesty  to  apprehend  and  detain  all  such 
persons  as  he  shall  have  just  cause  to  suspect  are  con- 
spiring against  the  government. 

Ordered,  That  Mr.  Hamden,  Sir  Eich.  Temple,  Mr. 
Pollexfen,  Mr.  Sacheverell,  Sir  Tho.  Lee,  Sir  Tho. 
Clarges,  Sir  John  Holt,  Mr.  Brewer,  do  immediately 
withdraw  into  the  Speaker's  Chamber,  and  prepare  the 
said  bill,  and  bring  the  same  in  with  all  convenient 
speed. 


Origin  of  tJie  Suspension  Act.  53 

*  "        "  A   bill   for   empowering   bis   Majesty   to 

apprehend  and  detain  all  such  persons  as  he  shall  have 
just  cause  to  suspect  are  conspiring  against  the  govern- 
ment, was  read  the  first  time. 

*'  Resolved,  That  the  bill  be  read  a  second  time,  im- 
mediately. 

"  The  said  bill  being  read  a  second  time  : 

"  Resolved,  That  the  said  bill  be  committed,  upon  the 
debate  of  the  House,  to  Sir  Tho.  Lee  [and  others],  and 
they  are  to  meet  this  afternoon  at  five  o'clock,  in  the 
Speaker's  Chamber. 

"  Marcli  m.  ^  ^  '^  ^^  ^-  Sir  Thomas 
Littleton  reports  from  the  Committee,  to  whom  the  bill 
for  empowering  his  Majesty  to  apprehend  and  detain 
such  persons,  as  he  shall  find  just  cause  to  suspect  are 
conspiring  against  the  government,  was  referred  :  That 
the  Committee  had  thought  fit  to  make  several  amend- 
ments to  the  bill.  Which  amendments  he  read  in  his 
place,  with  the  coherence,  and,  after,  delivered  the  same 
in  at  the  clerk's  table,  where  the  same  being  all  read 
over,  and  afterwards  again,  one  by  one,  upon  the  ques- 
tions severally  put  thereupon,  were  all  agreed  unto  by 
the  House. 

"A  motion  being  made,  that  there  be  another  amend- 
ment to  the  bill,  by  the  addition  of  the  words,  '  and  also 
of  all  other  laws  and  statutes  any  way  relating  to,  or 
providing  for  the  liberty  of  the  subjects  of  this  kingdom,' 
and  the  same  being  twice  read  : 

''Resolved,  That  this  House  doth  agree,  to  the  said 
amendment. 

"  Another  amendment  being  proposed,  by  adding 
these  words,  '  and  that  this  present  Act  shall  continue 
until  the  said  17th  day  of  April,  and  no  longer  ;'  and  the 
same  being  twice  read  : 

"  Resolved,  That  this  House  doth  agree  to  the  said 
amendment. 

"Another  amendment  being  proposed,  of  these  words, 
'  and  is  never  to  be  drawn  into  precedent,  or  example, 
hereafter ; ' 

"And  the  question  being  put,  that  the  House  do  agree 
to  the  said  amendment : 

"It  passed  in  the  negative."  {Commons  Journal, 
Vol.  10,  pp.  38,  39,  40.) 

[A  clause,  enacting  that  the  charges  of  the  persons 
confined  be  paid  out  of  the  crown  revenue,  was  not 
agreed  to.     The  usual  proviso  was  then  added. 

The  bill  finally  passed,  with  a  verbal  alteration. 
(//>.,  pp.  42,  43.)] 


54  Appendix. 

XIV. 

Preamble  of  the  Annual  Mutint^  Act. 

1   W.  &  M.  c/l  5. 

*'An  Act  for  punishing  Officers  or  Soldiers  wbo  shall 
Mutiny  or  Desert  Their  Majestjes  Service.  (6  S\aL  of 
the  Bealm,  55.) 

"  Whereas  the  raising  or  keeping  a  Standing  Army 
within  this  Kingdome  in  time  of  Peace  unlesse  it  be  with 
Consent  of  Parlyament  is  against  Law  And  whereas 
it  is  judged  necessary  by  Their  Majesty es  and  this  pre- 
sent Parlyament  That  during  this  time  of  Danger  seve- 
rall  of  the  Forces  which  are  now  on  foote  should  be  con- 
tinued and  others  raised  for  the  Safety  of  the  Kingdom 
for  the  Common  Defence  of  the  Protestant  Religion  and 
for  the  reduceing  of  Ireland 

"  And  whereas  noe  Man  may  be  forejudged  of  Life  or 
Limbe  or  subjected  to  any  kinde  of  punishment  by  Mar- 
tiall  Law  or  in  any  other  manner  then  by  the  Judgement 
of  his  Peeres  and  according  to  the  knowne  and  Estab- 
lished Laws  of  this  Realme  Yet  neverthelesse  it  being 
requisite  for  retaineing  such  Forces  as  are  or  shall  be 
raised  dureiug  this  Exigence  of  Affaires  in  their  Duty  an 
exact  Discipline  bo  observed  And  that  Soldiers  who  shall 
Mutiny  or  stirr  up  Seditions  or  shall  desert  Their  Majes- 
tyes  Service  be  brought  to  a  more  Exemplary  and  Speedy 
Punishment  then  the  usual  Forms  of  Law  will  allow 

"  Bee  it  therefore  enacted,"  &c. 

[Since  1  Ann.,  s'.  2,  ch.  20,  (8  SkU.  of  the  Realm,  209,) 
the  following  form  has  been  used  :] 

"  28  and  29  Vict.,  ch.  11. 

"  An  Act  for  punishing  Mutiny  and  Desertion,  and  for 
the  better  Pavment  of  the  Army  and  their  Quarters. 
|7th  April,  1865.J 

"  Whereas,  the  raising  or  keeping  a  Standing  Army 
within  the  United  Kingdom  of  Great  Britain  and  Ireland 
in  Time  of  Peace,  unless  it  be  with  consent  of  Parliament, 
is  against  Law  :  And,  whereas,  it  is  adjudged  necessary 
by  Her  Majesty  and  this  present  Parliament,  that  a  Body 
of  Forces  should  be  continued  for  the  Safety  of  the 
United  Kingdom,  the  Defence  of  the  Possessions  of  Her 
Majesty's  Crown,  and  the  Preservation  of  the  Balance  of 
Power  in  Europe,  and  that  the  whole  number  of  such 


Preamble  of  (he  Annual  Muliny  Act.  55 

Forces  slioiilcl  consist  of  142,477  Men,  including  9,109, 
all  Ranks,  to  be  employed  with  the  Depots  in  the  United 
Kingdom  of  Great  Britain  and  Ireland  of  Regiments  serv- 
ing in  Her  Majesty's  Indian  Possessions,  but  exclu- 
sive of  the  numbers  actually  serving  within  Her  Majesty's 
Indian  Possessions  :  And,  whereas,  no  Man  can  be  fore- 
judged of  Life  or  Limb,  or  subjected  in  time  of  Peace  to 
any  Kind  of  Punishment  within  this  Realm  by  Martial 
Law,  or  in  any  other  manner  than  by  Judgment  of  his 
Peers,  and  according  to  the  Known  and  established  Laws 
of  this  Realm  ;  yet,  nevertheless,  it  being  requisite,  for 
the  retaining  all  the  above  Forces  in  their  Duty,  that  an 
exact  Discipline  be  observed,  and  that  Soldeirs  who  shall 
Mutiny  or  stir  up  Sedition,  or  shall  Desert  Her  Majesty's 
Service,  or  be  guilty  of  Crimes  and  Ofi'ences  to  the  Pre- 
judice of  Good  Order  and  Military  Discipline,  be  brought 
to  a  more  exemplary  and  speedy  Punishment  than  the 
usual  Forms  of  the  Law  will  allow  : 
"Be  it  therefore  enacted "  &c. 


CONTENTS  OF  THE  APPENDIX, 


PAGE- 

L — The  Case  of  the  Earl  of  Lancaster,  and  Remarks  of  Blaekstone 

and  Hale  thereon 1 

II.—  Military  Commissions  issued  by  Charles  I.' , ,       5 

III. — Extracts  from  the  Petition  of  Right 7 

IV. — The  English  Acts    suspending  the  Privilege    of  the  Writ  of 

Habeas  Corpus 8 

V  — Geoffrey's  Case  in  France '. 10 

VI. — Extracts  from  the  Debates  in  the  Federal  Convention,  showing 
how  the  Provision  as  to  the  Habeas  Corpus  came  into  its 
present  shape 18 

VII. — Extracts  from  the  Debates  in  the  State  Conventions  relative  to 

the  Habeas  Corpus 20 

VIII. — The  Instances  in  which  the  Privilege  has  been  sustained,  and 

how  understoo  1 24 

IX.— The  History  of  the  Third,  Fifth  and  Sixth  Amendments 25 

X. — The  Acts  of  Congress  relating  to  Military  Commissions  and 

Courts  Martial 37 

XL — The  Proclamations  and  Orders  of  the  President  respecting  the 

Habeas  Corpus  and  Military  Commissions 40 

XH. — Johnson  v.  Duncan,  3  Martin's  La.  R.,  Old  Series,  520 45 

XIII.— The  Origin  of  the  Suspension  Act  in  the  English  Parliament.  . .  52 

XIV. — Preamble  of  the  Annual  Mutiny  Act 54 


APPENDIX— Continued. 


Revolutionary  Precedents. 

XV. 

Appointment  of  George  Washington  to  he  Commander-in-Chief 
of  the  Armg,  hy  the  Congress  of  the  Confederation^  on  the 
15th  June,  1775. 

Thursday,  June  15,  1775. 

Agreeable  to  order,  the  Congress  resolved  itself  into  a 
Committee  of  the  Whole,  and,  after  some  time,  the  Presi- 
dent resumed  the  chair,  and  Mr.  Ward  reported  that  the 
committee  had  come  to  some  further  resolutions,  which  he 
was  ordered  to  report. 

The  report  of  the  committee  being  read  and  considered, 

Resolved,  That  a  general  be  appointed  to  command  all 
the  continental  forces  raised,  or  to  be  raised,  for  the  de- 
fense of  American  liberty ;  that  five  .hundred  dollars  per 
month  be  allowed  for  the  pay  and  expenses  ot  the  general. 

The  Congress  then  proceeded  to  the  choice  of  a  general 
by  ballot,  and  George  Washington,  Esq.,  was  unanimously 
elected. 

Friday,  June  16,  1775. 

Met  according  to  adjournment.  (The  delegates  from 
the  Colonies  of  New  Hampshire,  Massachusetts  Bay,  Con- 
necticut, New  York,  New  Jersey,  Pennsylvania,  Delaware 
counties,  Maryland,  Virginia,  North  Carolina,  and  South 
Carolina  being  present.) 

The  President  informed  Colonel  Washington  that  the 
Congress  had  yesterday  unanimously  made  choice  of  him 
to  be  General  and  Commander-in-Chief  of  the  American 
forces,  and  requested  he  would  accept  of  that  employment ; 
to  which  Colonel  Washington,  standing  in  his  place, 
answered : 

"  Mr.  President  :  Though  I  am  truly  sensible  of  the 
high  honor  done  me  in  this  appointment,  yet  I  feel  great 
distress  from  consciousness  that  my  abilities  and  military 
experience  may  not  be  equal  to  the  extensive  and  impor- 


58  Appendix, 

tant  trust.  However,  as  the  Congress  desire  it,  I  will 
enter  upon  the  momentous  duty,  and  exert  every  power  I 
possess  in  their  service,  and  for  support  of  the  glorious 
cause.  I  beg  they  will  accept  my  most  cordial  thanks  for 
this  distinguished  testimony  of  their  approbation. 

"But,  lest  some  unlucky  event  should  happen,  unfavor- 
able to  my  reputation,  I  beg  it  may  be  remembered  by 
every  gentleman  in  the  room  that  I  this  day  declare  with 
i^he  utmost  sincerity,  1  do  not  think  myself  equal  to  tlie 
command  I  am  honored  with. 

"  As  to  pay,  sir,  I  beg  leave  to  assure  the  Congress  that, 
as  no  pecuniary  consideration  could  have  tempted  me  to 
accept  this  arduous  employment  at  the  expense  of  my  do- 
mestic ease  and  happiness,  I  do  not  wish  to  make  any 
profit  from  it.  I  will  keep  an  exact  account  of  my  ex- 
penses. Those,  I  doubt  not,  they  will  discharge,  and  that 
is  all  I  desire." 

Resolved^  That  a  committee  be  appointed  to  draft  a  com- 
missioil  and  instructions  for  the  General. 

The  persons  chosen  to  compose  the  committee,  were 
Mr.  Lee,  Mr.  E.  Rutledge,  and  Mr.  J.  Adams. 

Saturday,  June  17,  1775. 

Met  according  to  adjournment. 

The  committee  appointed  to  draft  a  commission  to  the 
General  reported  the  same,  which,  being  read  by  para- 
graphs and  debated,  was  agreed  to  as  follows : 

In  Congress. 

The  delegates  of  the  United  Colonies  of  New  Hamp- 
shire, Massachusetts  Bay,  Rhode  Island,  Connecticut,  New 
York,  New  Jersey,  Pennsylvania,  the  counties  of  New 
Castle,  Kent,  and  Sussex,  on  Delaware,  Maryland,  Vir- 
ginia, North  Carolina,  and  South  Carolina : 

To  George  Washington,  Esq.  : 

We,  reposing  special  trust  and  confidence  in  your  patri- 
otism, valor,  conduct,  and  fidelity,  do,  by  these  presents, 
constitute  and  appoint  you  to  be  General  and  Commander- 
in-Chief  of  the  army  of  the  United  Colonies,  and  of  all 
the  forces  now  raised,  or  to  be  raised  by  them,  and  of  all 
others  who  shall  voluntarily  ofier  their  services  and  join 
the  said  army  for  the  defense  of  American  liberty,  and 
for  repelling  every  hostile  invasion  thereof:  and  you  are 
hereby  vested  with  full  power  and  authority  to  act  as  you 
shall  think  for  the  good  and  welfare  of  the  service. 


General  Washington's  Instructions.  59 

And  we  do  hereby  strictly  charge  and  require  all  officers 
and  soldiers  under  your  command  to  be  obedient  to  your 
orders,  and  diligent  in  the  exercise  of  their  several  duties. 

And  we  do  also  enjoin  and  require  you  to  be  careful  in 
executing  the  great  trust  reposed  in  you,  by  causing  strict 
discipline  and  order  to  be  observed  in  the  army,  and  that 
the  soldiers  be  duly  exercised  and  provided  with  all  con- 
venient necessaries. 

And  you  are  to  regulate  your  conduct  in  every  respect 
by  the  rules  and  discipline  of  war,  (as  herewith  given 
you,)  and  punctually  to  observe  and  follow  such  orders  and 
directions,  from  time  to  time,  as  you  shall  receive  from 
this,  or  a  future  Congress  of  these  United  Colonies  or 
committee  of  Congress. 

This  commission  to  continue  in  force  until  revoked  by 
this  or  a  future  Congress. 

By  order  of  the  Congress. 

Ordered,  That  the  same  be  fairly  transcribed,  signed  by 
the  President,  attested  by  the  secretary,  and  delivered  to 
the  general. 

Resolved,  unanimously,  Whereas  the  delegates  of  all  the 
Colonies,  from  Nova  Scotia  to  Georgia,  in  Congress  assem- 
bled, have  unanimously  chosen  George  Washington,  Esq., 
to  be  General  and  Commander-in-Chief  of  such  forces  as 
are,  or  shall  be,  raised  for  the  maintenance  and  preservation 
of  American  liberty  ;  this  Congress  doth  now  declare  that 
they  will  maintain  and  assist  him  and  adhere  to  him,  the 
said  George  Washington,  with  their  lives  and  fortunes,  in 
the  same  cause. 

"  General  Washington's  Instructions. 

"This  Congress  having  appointed  you  to  be  General 
and  Commander-in-chief  of  the  army  of  the  United  Colo- 
nies, of  all  the  forces  raised  or  to  be  raised  by  them,  and 
of  all  others  who  shall  voluntarily  offer  their  service,  and 
join  the  said  army  for  the  defense  of  American  liberty,  and 
for  repelling  every  hostile  invasion  thereof,  you  are  to 
repair  with  all  expedition  to  the  Colony  of  Massachusetts 
Bay,  and  take  charge  of  the  army  of  the  United  Colonies. 
For  your  better  direction  : 

"  1.  You  are  to  make  a  return  to  us  as  soon  as  possible 
of  all  forces  which  you  shall  have  under  your  command, 
together  with  their  military  stores  and  provisions;  and 
also  as  exact  an  account  as  you  can  obtain  of  the  forces 
which  compose  the  British  army  in  America. 

"  2.  You  are  not  to  disband  any  of  the  men  you  find 


60  Ajypeiidix. 

raised  until  further  direction  from  this  Congress ;  and  if 
you  shall  think  their  numbers  not  adequate  to  the  purpose 
of  security,  you  may  recruit  them  to  a  number  you  shall 
think  sufficient,  not  exceeding  double  that  of  the  enemy. 

"  3.  In  all  cases  of  vacancy  occasioned  by  the  death  or 
removal  of  a  colonel,  or  other  inferior  officer,  you  are  by 
brevet,  or  warrant  under  your  seal,  to  appoint  another 
person  to  fill  up  such  vacancy,  until  it  shall  otherwise  be 
ordered  by  the  Provincial  Convention,  or  the  Assembly  of 
the  Colony,  from  whence  are  the  troops  in  which  such 
vacancy  happens,  shall  direct  otherwise. 

•'4.  You  are  to  victual,  at  the  Continental  expense,  all 
such  volunteers  as  have  joined  or  shall  join  the  united 
army. 

"  5.  You  shall  take  every  method  in  your  power,  con- 
sistent with  prudence,  to  destroy  or  make  prisoners  of  all 
persons  who  now  are,  or  who  hereafter  shall  appear,  in 
arms  against  the  good  people  of  the  United  Colonies. 

"  6.  And  whereas  all  particulars  cannot  be  foreseen,  nor 
positive  instructions  for  such  emergencies  so  beforehand 
given,  but  that  many  things  must  be  left  to  your  prudent 
and  discreet  management,  as  occurrences  may  arise  upon 
the  place,  or  from  time  to  time  fall  out,  you  are,  therefore, 
upon  all  such  accidents,  or  any  occasion  that  may  happen, 
to  use  your  best  circumspection ;  and,  advising  with  your 
council  of  war,  to  order  and  dispose  of  the  said  army  under 
your  command  as  may  be  most  advantageous  for  the 
obtaining  of  the  end  for  which  these  forces  have  been 
raised,  making  it  your  especial  care,  in  discharge  of  the 
great  trust  committed  unto  you,  that  the  liberties  of 
America  receive  no  detriment." 

From  Fisher's  "Trial  of  the  Constitution,"  p.  223. 

"Something  also  may  be  inferred  as  to  his  (Chief  Jus- 
tice Marshall's)  opinion,  from  the  conduct  of  his  friend, 
General  Washington,  and  of  Congress  in  the  war  of  the 
Eevolution.  At  that  time  there  was  no  national  Execu- 
tive ;  Congress,  which  consisted  of  delegates  from  the 
States,  acting  virtually  both  as  Legislature  and  Executive. 

"It  was  a  period  of  war,  and  the  public  safety  required 
that  persons  suspected  of  treasonable  designs  and  sympa- 
thies should  be  arrested.  Many  were,  for  this  reason, 
imprisoned  by  the  executive  power  of  the  States,  acting  at 
the  suggestion  of  Congress,  and  with  the  approbation  of 
Washington  ;  and  this  was  done  either  before  or  after  an 
act  of  the  State  legislatures  suspending  the  writ  of  Jiabeas 
corpus,  thus  following  the  laws  and  customs  of  England. 


From  ''Fishefs  Trial  of  the  Constitution  J'  61 

"  A  case  of  this  sort  occurred  in  this  city  in  1777.  Some 
twenty  gentlemen  of  high  respectability  were  arrested  by 
order  of  the  Supreme  Executive  Council  of  this  State, 
(Pennsylvania,)  at  the  instance  of  Congress,  banished  to 
a  town  in  Virginia,  and  there  detained.  They  were  not 
ti'eated  as  criminals,  but  with  consideration  and  kindness. 
Those  who  chose  to  declare  their  allegiance  to  the  Govern- 
ment were  released,  and  all  were  permitted  to  return  to 
their  homes,  when  it  was  thought  they  could  no  longer  be 
dangerous." 

"The  following  extracts  from  the  Journal  of  Congress 
show  the  opinion  of  its  members  on  the  law  at  that  time. 
Many  of  them  were  also  afterwar4s  members  of  the  Con- 
stitutional Convention : 

Journal  of  Congress,  August  and  September,  1777. 

"Whereas^ the  States  of  Pennsylvania  and  Delaware 
are  threatened  with  immediate  invasion  from  a  powerful 
army,  who  have  already  landed  at  the  head  of  Chesapeake 
bay.  And  whereas,  principles  of  policy  and  of  self  pres- 
ervation require  that  all  persons  who  may  be  reasonably 
suspected  of  aiding  or  abetting  the  cause  of  the  enemy 
may  be  prevented  from  pursuing  measures  injurious  to 
the  public  weal : 

"  Resolved,  That  the  executive  authority  of  the  States 
of  Pennsylvania  and  Delaware  be  requested  to  cause  all 
persons  within  their  respective  States,  notoriously  dis- 
affected, forthwith  to  be  apprehended,  disarmed,  and 
secured,  till  such  time  as  the  respective  States  think  they 
can  be  released  without  injury  to  the  common  cause. 

''' Resolved,  That  it  be  recommended  to  the  Supreme 
Executive  Council  of  the  State  of  Pennsylvania  to  cause 
a  diligent  search  to  be  made  in  the  houses  of  all  the  in- 
habitants of  the  city  of  Philadelphia,  who  have  not  mani- 
fested  their  attachment  to  the  American  cause,  for  fire-arms, 
swords,  and  bayonets ;  that  the  owners  of  the  arms  be  paid 
for  them  at  an  appraised  value,  and  that  they  be  delivered 
to  such  of  the  militia  of  the  State  of  Pennsylvania  who 
are  at  present  unarmed,  and  have  been  called  into  the  field. 

'^  Resolved,  That  it  be  recommended  to  the  executive 
powers  of  the  respective  States  forthwith  to  apprehend  and 
secure  all  persons  who  have,  in  their  general  conduct  and 
conversation,  evinced  a  disposition  inimical  to  the  cause  of 
America,  and  that  the  persons  so  seized  be  confined  in 
such  places  and  treated  in  such  manner  as  shall  be  con- 


62  Appendix. 

sistent  with  their  respective  characters  and  the  security  of 
their  persons. 

^'  Besolved,  That  persons  of  like  character,  and  in  emer- 
gencies equal  to  the  present,  when  the  enemy  is  at  our 
door,  have,  in  other  States  been  arrested  and  secured  upon 
suspicions  arising  from  their  general  behavior  and  refusal  to 
acknowledge  their  allegiance  to  the  State  of  which  they 
were  the  proper  subjects,  and  that  such  proceedings  may 
be  abundantly  justified  by  the  conduct  of  the  freest  na- 
tions and  the  authority  of  the  most  judicious  civilians,''' 

*'  These  arrests  were  made  with  the  knowledge  and  ap- 
probation of  Washington.  A  writ  of  habeas  corpus  was  is- 
sued at  the  instance  of  the  prisoners,  but  it  was  disregarded 
by  the  officer  in  charge* of  them,  and  soon  afterwards,  Sep- 
tember 16th,  1777,  the  Legislature  passed  a  bill  indemni- 
fying the  Executive  Council,  and  suspending  the  writ  of 
habeas  coiyus.  This  bill,  as  it  fully  accords  with  the  Eng- 
lish law,  and  is  conclusive  proof  of  what  ^was  regarded 
as  the  law  of  the  Colonies  at  the  time  of  the  Revolution, 
is  worth  quoting  in  full." 

'*AN  ACT  to  empower  the  Supreme  Executive  Council  of  this  Common- 
wealth to  provide  for  the  security  thereof  in  special  cases  where  no 
provision  is  already  made  by  law. 

"  Whereas  the  preservation  of  this  State,  and  of  all  its 
members,  and  of  the  army  acting  in  support  thereof  at 
the  time  of  a  hostile  invasion,  may  require  the  immediate 
interposition  of  the  Supreme  Executive  Council,  when  the 
judicial  powers  of  the  Government  cannot,  in  the  ordinary 
course  of  law,  sufficiently  provide  for  its  security ; 

"And  whereas  for  this  important  purpose  the  Supreme 
Executive  Council  of  this  Commonwealth  have  lately,  at 
the  recommendation  of  Congress,  taken  up  several  persons 
who  have  refused  to  give  to  the  State  the  common  assu- 
rance of  their  fidelity  and  peaceable  behavior,  as  required 
by  law,  and  it  is  apprehended  that  there  are  still  more 
such  persons  among  us  who  cannot,  at  this  juncture,  be 
safely  trusted  .with  their  freedom  without  giving  proper 
security  to  the  public: 

"Be  it  therefore  enacted,  and  it  is  hereby  enacted,  by 
the  Representatives  of  the  freemen  of  the  Commonwealth 
of  Pennsylvania  in  General  Assembly  met,  and  by  the 
authority  of  the  same.  That  it  may  and  shall  be  lawful 
for  the  President  or  Vice  President,  and  the  members  of 
the  Supreme  Executive  Council  of  this  State,  or  any  two 
qf  them,  either  upon  the  recommendation  of  Congress,  or  at 


Journal  of  Congress,  August  and  September,  1777.      63 

the  requisition  of  the  Commander-in-Chief  of  the  army,  or 
the  oommander  of  a  division  or  corps  in  the  same,  or  upon 
the  information  of  any  credible  subject  of  this  or  any 
other  of  the  United  States,  to  arrest  any  person  or  per- 
sons within  this  Commonwealth  who  shall  be  suspected 
from  any  of  his  or  her  acts,  writings,  speeches,  conversa- 
tions, travels,  or  other  behavior,  to  be  disafiected  to  the 
community  of  this,  or  all,  or  any  of  the  United  States  of 
America,  or  to  be  an  harbinger  of  the  common  enemy  who 
is  at  our  gates,  or  to  give  mediate  or  immediate  intelli- 
gence and  warning  to  their  commanders  by  letters,  mes- 
sengers, or  tokens,  or  by  discouraging  people  from  taking  up 
arms  for  the  defense  of  the  country,  or  spreading  false  news, 
or  doing  any  other  thing  to  subvert  the  good  order  and 
regulations  which  are  or  may  be  pursued  for  the  safety  of 
the  country,  and  to  sieze  and  examine  such  papers  in  their 
possession  as  shall  in  anywise  affect  the  public ;  and  the 
same  persons  being  arrested,  to  confine  and  remove  thera  to  any 
distant  jjlace,  where  it  will  be  out  of  their  power  to  disturb 
the  peace  and  safety  of  the  States ;  or  to  tender  to  them 
the  oath  or  affirmation  of  allegiance  or  fidelity  to  the  State, 
as  directed  by  law,  and,  upon  taking  or  subscribing  the 
same,  to  enlarge  them,  or  to  demand  and  take  such  other 
and  further  security  and  assurance  from  them  as  the  said 
President,  or  Vice  President  and  Council,  or  any  two  of 
them,  in  their  discretion  shall  think  proper,  or  as  the  par- 
ticular circumstances  of  the  case  may  require. 

"  And  be  it  further  enacted  by  the  authority  aforesaid, 
That  the  President,  Vice  President,  and  other  members 
of  the  Supreme  Executive  Council  of  this  Commonwealth, 
and  all  persons  acting  by  their  special  command  in  the 
premises,  shall  be,  and  and  are  hereby,  fully  indemnified  and 
saved  harmless  from  all  proc'ess,  suits,  and  actions  that 
shall  or  may  be  hereafter  sued,  commenced,  prosecuted,  or 
brought  against  them,  or  any  or  either  of  them,  for  or  in 
respect  of  any  of  their  orders  or  proceedings  heretofore 
issued  and  had  upon  the  recommendation  of  Congress,  or 
which  there  shall  hereafter  issue  and  have  by  virtue  of 
this  act.  And  that  no  judge  or  officer  of  the  Supreme 
Court,  or  any  inferior  court  within  this  Commonwealth, 
shall  issue  or  allow  of  any  writ  of  habeas  corpus,  or  other 
remedial  writ,  to  obstruct  the  proceedings  of  the  said  Ex- 
ecutive Council  against  suspected  persons  in  this  time  of 
imminent  danger  to  the  State. 

"Provided  always,  and  it  is  hereby  further  enacted  by 
the  authority  aforesaid,  That  this  act  shall  be  in  force  to 
the  end  of  the  first  sitting  of  the  next  General  Assembly  of 
this  Commonwealth,  and  no  longer. 


64  Appendix. 

"  Enacted  into  a  law  the  sixteenth  day  of  September  in 
the  year  of  our  Lord  one  thousand  seven  hundred  and 
seventy-seven." 


Washington's  revolutionary  orders,  selected  from  the  manuscript 
_       of  JohnWhiting,  adjutant  of  the  2d  Massachusetts  line,  and 
edited  by  his  son,  Henry  Whiting,  U.  S.  Army, 

Headquarters  Valley  Forge,  1778. 

At  a  general  court-martial,  whereof  Colonel  Cortland 
was  president,  24th  ult.,  Joseph  Murill,  an  inhabitant  of 
the  State  of  Pennsylvania,  was  tried  for  giving  intelligence 
to  the  enemy,  and  for  acting  as  a  guide  to  the  enemy. 
Found  guilty  of  the  last  charge,  being  a  breech  of  the 
resolution  of  Congress  of  8th  October,  1777,  extended  by 
another  resolution  of  Congress  dated  December  29th, 
1777  ;  and  upwards  of  two-thirds  agreeing,  sentenced  to 
suffer  death. 

His  Excellency,  the  Commander-in-Chief,  approves  the 
sentence,  and  orders  Joseph  Murill  to  be  executed  next 
Tuesday  morning,  10  o'clock. 

NOTE   TO   order   I. 

The  resolve  of  Congress  here  alluded  to  is  the  fol- 
lowing : 

"  Wednesday,  October  8,  1777. 

**  A  motion  w.as  made  to  prevent  intercourse  between 
the  towns  in  the  possession  of  the  enemy  and  the  inhabi- 
tants of  the  country. 

'•'  Ordered,  That  it  be  referred  to  a  committee  of  three. 

"  The  members  chosen,  Mr.  R.  H.  Lee,  Mr.  J.  Adams, 
and  Mr.  Chase. 

"Four  O'clock,  P.  M. 

"  The  committee  to  whom  was  referred  the  motion  for 
preventing  an  intercourse  between  the  towns  in  the  pos- 
session of  the  enemy  and  the  inhabitants  of  the  country 
brought  in  a  resolution  for  that  purpose,  which  was  agreed 
to,  as  follows : 

*'  Whereas,  it  is  of  essential  consequence  to  the  general 
welfare  that  the  most  effectual  measures  should  be  forth- 
with pursued  for  cutting  off' all  communication  of  supplies 
or  intelligence  to  the  enemy's  army  now  in  and  near  the 


Washington's  Revolutionary  Orders.  65 

city  of  Philadelphia ;  and  whereas,  it  has  been  found  by 
the  experience  of  all  the  States  that,  in  times  of  invasion, 
the  power  of  the  municipal  law  is  too  feeble  and  dilatory 
to  bring  to  a  condign  and  exemplary  punishment  persons 
guilty  of  such  traitorous  practices : 

'•'Resolved^  That  any  person,  being  an  inhabitant  of  any 
of  these  States,  who  shall  act  as  a  guide  or  pilot  by  land 
or  water  for  the  enemy,  or  shall  give  or  send  intelligence 
to  them,  or  in  any  manner  furnish  them  with  supplies  of 
provisions,  money,  clothing,  arms,  forage,  fuel,  or  any 
kind  of  stores,  be  considered  and  treated  as  an  enemy  and 
traitor  to  these  United  States ;  and  that  General  Washing- 
ton be  empowered  to  order  such  persons  taken  within 
thirty  miles  of  any  city,  town,  or  place  in  the  States  of 
Pennsylvania,  Jersey,  or  Delaware,  which  is,  or  may  be 
in  the  possession  of  the  enemy's  forces,  to  be  tried  by  a 
court-martial,  and  such  court-martial  are  hereby  author- 
ized to  sentence  any  such  persons  convicted  before  them 
of  any  of  the  offenses  aforesaid  to  suffer  death  or  such 
other  punishment  as  to  them  shall  seem  meet. 

"  This  resolve  to  remain  in  force  until  the  first  day  of 
January  next,  unless  sooner  revoked  by  Congress." 


(2.) 

Headquarters,  Valley  Forge. 

March  2,  1778. 
The  generalcourt-martial,  where  of  Colonel  Courtland  is 
president,  is  dissolved,  and  another  ordered  to  sit  to-mor- 
row at  ten  o'clock,  a.  m.,  at  the  Bake  House.  Colonel 
Chandler  is  appointed  president  thereof,  and  each  brigade 
will  give  a  captain  for  the  court. 

The  execution  of  Joseph  Murill  is  postponed  to  a  future 
day. 


(17.) 


Headquarters,  Valley  Forge, 

March  25,  1778. 

At  a  general   court-martial,   whereof  Col.   Swift  was 

president,  13th  instant,  Abel  Jones,  an  inhabitant  of  the 

State  of  Pennsylvania,  was  tried  for  supplying  the  enemy 

with  money,  trading  with  them,  and  buying  and  passing 

2 


66  Appendix. 

counterfeit  money  ;  found  guilty  of  the  charges  exhibited 
against  him,  and  sentenced  to  receive  one  hundred  lashes 
on  his  bare  back,  be  sent  to  some  public  place  in  this 
State  to  be  kept  at  hard  labor  during  the  contest  with 
Great  Britain. 

The  Commander-in-Chief  approves  the  sentence. 

At  the  same  court,  Matthew  Tilson,  Henry  Norrice, 
Thomas  Bailey,  John  Campbell,  and  Jesse  Harburn, 
inhabitants  of  the  State  of  Pennsylvania,  were  tried  for 
supplying  the  enemy  with  provisions ;  severally  found 
guilty,  and  ordered  by  the  Commander-in-Chief  to  be  con- 
fined in  the  provost,  and  by  day  continually  employed  on 
fatigue  for  the  term  of  one  month  ;  and  in  addition  to  said 
Norrice's  punishment,  that,  agreeably  to  the  sentence  of 
the  court,  he  pay  fifty  pounds  into  the  hands  of  the  adju- 
tant general  for  the  use  of  the  sick  in  camp. 

At  the  same  court,  Thomas  Coskel  and  Samuel  Burris, 
soldiers,  were  tried  for  attempting  to  desert  to  the  enemy  ; 
plead  guilty,  and  sentenced  to  receive  one  hundred  lashes 
each,  fifty  per  day,  two  days  successively ;  said  Burris  to  be 
well  washed  with  salt  and  water  after  he  has  received  his 
last  fifty. 

The  general  approves  and  orders  the  execution  of  the 
sentences,  to  commence  to-morrow  morning  at  9  o'clock, 
at  the  heads  of  the  regiments  to  which  they  (the  prisoners) 
belong. 


(26.) 

Headquarters,  Valley  Forge, 

Aprils,  1778. 

At  a  general  court-martial,  whereof  Col.  Ogden  was 
president,  24th  ultimo,  William  Morganan,  an  inhabitant 
of  Pennsylvania,  was  tried  for  coming  out  of  Philadelphia, 
stealing  a  horse,  and  attempting  to  carry  him  into  the  city  ; 
found  guilty  of  a  breach  of  a  resolution  of  Congress,  dated 
October  8,  1777,  extended  by  another  resolve,  and  sen- 
tenced (two-thirds  agreeing)  to  be  kept  at  hard  labor  during 
the  contest  with  Great  Britain,  not  less  than  thirty  miles 
from  the  enemy's  camp,  and  if  he  is  caught  making  his 
escape,  to  sufifer  death. 

His  excellency,  the  Commander-in-Chief,  approves  the 
foregoing  sentence,  and  orders  it  to  take  place. 


Washington's  Orders. — Case  of  Missionary  Smith.      67 

(36.) 

Headquarters,  Valley  Forge, 

April  13,  1778. 

The  general  officers  are  desired  to  meet  at  Lord  Stir- 
ling's quarters  next  Wednesday,  at  10  o'clock,  in  the  fore- 
noon. 

At  a  general  court-martial,  whereof  Col.  Vose  was  presi- 
dent, 4th  instant,  Philip  Calp,  an  inhabitant,  was  tried  for 
attempting  to  carry  flour  into  Philadelphia  ;  found  guilty, 
and  sentenced  to  receive  fifty  lashes,  and  to  be  employed 
on  some  public  works  for  the  use  of  the  cantonments, 
while  the  British  army  continues  in  this  State,  unless  he 
should  enlist  into  the  service  during  the  present  war.  At 
the  same  court,  by  adjournment,  7th  instant,  Captain 
Benstead,  paymaster  of  the  10th  Pennsylvania  regiment, 
was  tried  for  disobeying  the  orders  of  Captain  Cox,  by 
refusing  to  pay  him  when  he  paid  the  other  officers  of  the 
regiment.  The  court  having  considered  the  charge  and 
the  evidence,  are  unanimously  of  opinion  that  Captain 
Benstead  is  guilty  of  the  charge,  but  think  the  orders  of 
his  colonel  will  justify  his  refusal  to  pay  Captain  Cox,  and 
do  thereby  acquit  him. 

;  The  Commander-in-Chief  approves  the  foregoing  sentence 
of  the  court,  except  the  stripes,  and  ord^ers  it  to  take  place ; 
and  that  Captain  Benstead  be  released  from  his  arrest. 


XVI, 

Case  of  Missionary  Smith. 
Mackintosh's  Speech  in  Parliament,  (See  his  works,)  p.  734. 

"  On  the  legality  of  the  trial,  sir,  the  impregnable  speech 
of  my  learned  friend  has  left  me  little  if  anything  to  say. 
The  only  principle  on  which  the  law  of  England  tolerates 
what  is  called  '^  martial  law  "  is  necessity;  its  continuance 
requires  precisely  the  same  justification  of  necessity  ;  and 
if  its  survives  the  necessity,  in  which  alone  it  rests,  for  a 
single  minute,  it  becomes  instantly  a  mere  exercise  of  law- 
less violence.  When  foreign  invasion  or  civil  war  renders 
it  impossible  for  courts  of  law  to  sit,  or  to  enforce  the  exe- 
cution of  their  judgments,  it  becomes  necessary  to  find 
some  rude  substitute  for  them,  and  to-employ  for  that  pur- 
pose the  military,  which  is  the  only  remaining  force  in  the 


6B  Appendix. 

community.  While  the  laws  are  silenced  by  the  noise  of 
arms,  the  rulers  of  the  armed  force  must  punish  as  equi- 
tably as  they  can  those  crimes  which  threaten  their  own 
safety  and  that  of  society  ;  but  no  longer.  *  Every  moment 
beyond  is  usurpation.  As  soon  as  the  laws  can  act,  every 
other  mode  of  punishing  supposed  crimes  is  itself  an 
enormous  crime.  If  argument  be  not  enough  on  this  sub- 
ject— if,  indeed,  the  mere  statement  be  not  the  evidence  of 
its  own  truth— I  appeal  to  the  highest  and  most  venerable 
authority  known  to  our  law.  "  Martial  law,"  -says  Sir  Mat- 
thaw  Hale,  "is  not  a  law,  but  something  indulged  rather 
than  allowed  as  a  law.  The  necessity  of  government, 
order,  and  discipline  in  an  army  is  that  only  which  can 
give  it  countenance.  Necessitas  enim,  quod  cogit,  defendiL 
Secondly,  this  indulged  law  is  only  to  extend  to  members 
of  the  army,  or  to  those  of  the  opposite  army,  and  never 
may  be  so  much  indulged  as  to  be  exercised  or  executed 
upon  others.  Thirdly,  the  exercise  of  martial  law  may 
not  be  permitted  in  time  of  peace,  when  the  king's  courts 
are*'  (or  may  be)  "open."  The  illustrious  judge  on  this 
occasion  appeals  to  the  petition  of  right,  which,  fifty 
years  before,  had  declared  all  proceedings  by  martial  law 
in  time  of  peace  to  be  illegal.  He  carries  the  principle 
back  to  the  cradle  of  English  liberty,  and  quotes  the 
famous  reversal  o^the  attainder  of  the  Earl  of  Kent,  in 
the  first  year  of  Edward  III,  as  decisive  of  the  principle, 
that  nothing  but  the  necessity  arising  from  the  absolute 
interruption  of  civil  judicature  by  arms,  can  warrant  the 
exercise  of  what  is  called  martial  law.  Whenever  and 
wherever  they  are  so  interrupted,  and  as  long  as  the  inter- 
ruption continues,  necessity  justifies  it. 

No  other  doctrine  has  ever  been  maintained  in  this 
country,  since  the  solemn  parliamentary  condemnation  of 
the  usurpations  of  Charles  I,  which  he  was  himself  com- 
pelled to  sanction  in  the  petition  of  right.  In  none  of  the 
revolutions  or  rebellions  which  have  since  occurred  has 
martial  law  been  exercised,  however  much,  in  some  of 
them,  the  necessity  might  seem  to  exist.  Even  in  those 
most  deplorable  of  all  commotions  which  tore  Ireland  in 
pieces,  in  the  last  years  of  the  eighteenth  century — in  Lhe 
midst  of  ferocious  revolt  and  cruel  punishment — at  the 
very  moment  of  legalizing  these  martial  jurisdictions  in 
1799,  the  very  Irish  statute  which  was  passed  for  that  pur- 
pose did  homage  to  the  ancient  and  fundamental  princi- 
ples of  the  law  in  the  very  act  of  departing  from  them. 
The  Irish  statute,  (39  George  III,  c.  3,)  after  reciting  '  that 
martial  law  had  been  successfullv  exercised  to  the  restora- 


Case  of  Missionary  Smith,  69 

tion  of  peace,  so  far  as  to  permit  the  course  of  the  common 
law  partially  to  take  place,  but  that  the  rebellion  continued 
to  rage  in  considerable  parts  of  the  kingdom,  whereby  it 
has  become  necessary  for  Parliament  to  interpose,'  goes  on 
to  enable  the  Lord  Lieutenant  "  to  punish  rebels  by  courts- 
martial."  This  statute  is  the  most  positive  declaration  that 
where  the  common  law  can  be  exercised  in  some  parts  of 
the  country,  martial  law  cannot  be  established  in  others, 
though  rebellion  actually  prevails  in  those  others,  without 
an  extraordinary  interposition  of  the  supreme  legislative 
authority  itself. 

I  have  already  quoted  from  Sir  Matthew  Hale  his  posi- 
tion respecting  the  two-fold  operation  of  martial  law,  as 
it  affects  the  army  of  the  power  which  exercises  it,  and  as 
it  acts  against  the  army  of  the  enemy.  That  great  judge, 
happily  unused  to  standing  armies,  and  reasonably  preju- 
diced against  military  jurisdiction,  does  not  pursue  his 
distinction  through  all  its  consequences,  and  assigns  a 
ground  for  the  whole  which  will  support  only  one  of  its 
parts.  "The  necessity  of  order  and  discipline  in  an  army" 
is,  according  to  him,  the  reason  why  the  law  tolerates  this 
departure  from  its  most  valuable  rules;  but  this  necessity 
only  justifies  the  exercise  of  martial  law  over  the  army  of 
our  own  State.  One  part  of  it  has  since  been  annually 
taken  out  of  the  common  law,  and  provided  for  by  the 
military  act,  which  subjects  the  military  offenses  of  soldiers 
only  to  punishment  by  military  courts,  even  in  time  of 
peace.  Hence  we  may  now  be  said  annually  to  legalize 
military  law  ;  which,  however,  differs  essentially  from  mar- 
tial law  in  being  confined  to  offenses  against  military  dis- 
cipline, and  in  not  extending  to  any  persons  but  those 
who  are  members  of  the  army. 

Martial  law  exercised  against  enemies  or  rebels  cannot 
depend  on  the  same  principle ;  for  it,  is  certainly  not 
intended  to  enforce  or  preserve  discipline  among  them. 
It  seems  to  me  to  be  only  a  more  regular  and  convenient 
mode  of  exercising  the  right  to  kill  in  war — a  right  origin- 
ating in  self-defense,  and  limited  to  those  cases  where 
such  killing  is  necessary — as  the  means  of  insuring  that 
end.  Martial  law  put  in  force  against  rebels  can  only 
be  excused  as  a  mode  of  more  deliberately  and  equitably 
selecting  the  persons  from  whom  quarter  ought  to  be  with- 
held, in  a  case  where  all  have  forfeited  their  claim  to  it. 
It  is  nothing  more  than  a  sort  of  better  regulated  decima- 
tion, founded  upon  choice  instead  of  chance,  in  order  to 
provide  for  the  safety  of  the  conquerors,  without  the  horrors 


70  Appendix. 

of  undistinguished  slaughter;  it  is  justifiable  only  where 
it  is  an  act  of  mercy.  Thus  the  matter  stands  by  the  law 
of  nations.  But  by  the  law  of  England,  it  cannot  be 
exercised  except  where  the  jurisdiction  of  courts  of  justice 
is  interrupted  by  violence.  Did  this  necessity  exist  at 
Deraarara  on  the  13th  of  October,  1823  ?  Was  it  on  that 
day  impossible  for  the  courts  of  law  to  try  offenses  ?  It 
is  clear  that,  if  the  case  be  tried  by  the  law  of  England, 
and  unless  an  affirmative  answer  can  be  given  to  these 
questions  of  fact,  the  court-martial  had  no  legal  power  to 
try  Mr.  Smith. 

Now,  sir,  I  must  in  the  first  place  remark  that  General 
Murray  has  himself  express!}^  waived  the  plea  of  necessity, 
and  takes  merit  to  himself  for  having  brought  Mr.  Smith 
to  trial  before  a  court-martial,  as  the  most  probable  mode 
of  securing  impartial  justice ;  a  statement  which  would  be 
clearly  an  attempt  to  obtain  commendation  under  false  pre- 
tences, if  he  had  no  choice,  and  was  compelled  by  abso- 
lute necessity  to  recur  to  martial  law  :  "  In  bringing  this 
man  (Mr.  Smith)  to  trial,  under  present  circumstances,  I 
have  endeavored  to  secure  to  him  the  advantage  of  the 
most  cool  and  dispassionate  consideration  by  framing  a 
court  entirely  of  officers  of  the  army,  who,  having  no 
interests  in  the  country,  are  without  the  bias  of  public 
opinion,  which  is  at  present  so  violent  against  Mr. 
Smith."  This  paragraph  I  conceive  to  be  an  admission, 
and  almost  a  boast,  that  the  trial  by  court-martial  was 
a  matter  of  choice,  and  therefore  not  a  necessity ;  and  I 
shall  at  present  say  nothing  more  on  it  than  earnestly  to 
beseech  the  House  to  remark  the  evidence  which  it  affords 
of  the  temper  of  the  colonists,  and  to  bear  in  mind  the 
inevitable  influence  of  that  furious  temper  on  the  prose- 
cutors who  conducted  the  accusation ;  on  the  witnesses 
who  supported  it  by  their  testimony ;  on  the  officers  of 
the  court-martial,  who  could  have  no  other  associates  or 
friends  but  among  these  prejudiced  and  exasperated  col- 
onists. With  what  suspicion  and  jealousy  ought  we  not 
to  regard  such  proceedings  ?  What  deductions  ought  to 
be  made  from  the  evidence?  How  little  can  we  trust  the 
fairness  of  the  prosecutors  or  the  impartiality  of  the 
judges  ?  What  hope  of  acquittal  could  the  most  innocent 
prisoner  entertain  ?  Such,  says  in  substance  Governor 
Murray,  was  the  rage  of  the  inhabitants  of  Demarara 
against  the  unfortunate  Mr.  Smith  that  his  only  chance 
of  impartial  trial  required  him  to  be  deprived  of  all  the 
safeguards  which  are  the  birthright  of  British  subjects, 
and  to  be  tried  by  a  judicature  which  the  laws  and  feelings 
of  his  country  alike  abhor. 


Missionary  Smith's  Case.  71 

But  the  admission  of  Governor  Murray,  though  conclu- 
sive against  him,  is  not  necessary  to  the  argument;  for 
my  learned  friend  has  already  demonstrated  that,  in  fact, 
there  was  no  necessity  for  a  court-martial  on  the  13th  of 
October. 

From  the  31st  of  August  it  appears,  by  General  Mur- 
ray's letters,  that  no  impediment  existed  to  the  ordinary 
course  of  law  ;  "  no  negroes  were  in  arms  ;  no  war  or  bat- 
tle's sound  was  heard  "  through  the  Colony.  There  re- 
mained, indeed,  a  few  runaways  in  the  forests  behind ; 
but  we  know,  from  the  best  authorities,  that  the  forests 
were  never  free  from  bodies  of  these  wretched  and  desper- 
ate men  in  those  unhappy  settlements  in  Guiana,  where, 
under  every  government,  rebellion  has  as  uniformly  sprung 
from  cruelty,  as  pestilence  has  arisen  from  the  marshes. 
Before  the  4th  of  September,  even  the  detachment  which 
pursued  the  deserters  into  the  forest  had  returned  into 
the  Colony.  For  six  weeks,  then,  before  the  court-martial 
was  assembled,  and  for  twelve  weeks  before  that  courtpro- 
nounced  sentence  of  death  on  Mr.  Smith,  all  hostility  had 
ceased,  no  necessity  for  their  existence  can  be  pretended, 
and  every  act  which  they  did  was  an  open  and  deliberate 
defiance  of  the  law  of  England. 

Where,  then,  are  we  to  look  for  any  color  of  law  in, 
these  proceedings?  Do  they  derive  it  from  the  Dutch 
law?  I  have  diligently  examined  the  Roman  law,  which 
is  the  foundation  of  that  system,  and  the  writings  of  those 
most  eminent  jurists  who  have  contributed  so  much  to  the 
reputation  of  Holland :  I  can  find  in  them  no  trace  of  any 
such  principle  as  martial  law.  Military  law,  indeed,  is 
clearly  defined  ;  and  provision  is  made  for  the  punishment 
by  military  judges  of  the  purely  military  oftenses  of  sol- 
diers. 

But  to  any  power  of  extending  military  jurisdiction 
over  those  who  are  not  soldiers,  there  is  not  an  allusion. 
I  will  not  furnish  a  subject  for  the  pleasantries  of  my  right 
honorable  friend,  or  tempt  him  into  a  repetition  of  his 
former  innumerable  blunders,  by  naming  the  greatest  of 
these  jurists;  lest  his  date,  his  occupation,  and  his  rank, 
might  be  again  mistaken  ;  and  the  venerable  President  of 
the  Supreme  Court  of  Holland  might  be  once  more  called 
a  "clerk  of  the  States  General."  "  Persecutio  militis,"  says 
that  learned  person,  '•^'pertinet  ad  judicem  miUtarem  quando 
delictum  sit  militare,  et  ad  judicem  communem  quando  delictum 
sit  commune.'"  Far  from  supposing  it  to  be  possible  that 
those  who  were  not  soldiers  could  ever  be  triable  by  mili- 
tary courts  for  crimes  not  military,  he   expressly  declares 


72  Appendix. 

the  law  and  practice  of  the  United  Provinces  to  be,  that 
even  soldiers  are  amenable,  for  ordinary  oflPenses  against 
society,  to  the  court  of  Holland  and  Friesland,  of  which 
he  was  long  the  chief.  The  law  of  Holland,  therefore, 
does  not  justify  this  trial  by  martial  law. 

Nothing  remains  Tjut  some  law  of  the  colony  itself. 
Where  is  it  ?  It  is  not  alleged  or  alluded  to  in  any  part  of 
this  trial.  We  have  heard  nothing  of  it  this  evening.  So 
unwilling  was  I  to  believe  that  this  court-martial  would 
dare  to  act  without  some  pretense  of  legal  authority,  that 
I  suspected  an  authority  for  martial  law  would  be  dug  out 
of  some  dark  corner  of  a  Guiana  ordinance.  I  knew  it 
was  neither  in  the  law  of  England,  nor  in  that  of  Holland  ; 
and  I  now  believe  that  it  does  not  exist  even  in  the  law  of 
Demarara.  The  silence  of  those  who  are  interested  in 
producing  it  is  not  my  only  reason  for  this  belief.  I  hap- 
pen to  have  seen  the  instructions  of  the  States  General  to 
their  Governor  of  Demarara,  in  November,  1792 — probably 
the  last  ever  issued  to  such  an  officer  by  that  illustrious 
and  memorable  assembly.  They  speak  at  large  of  coun- 
cils of  war,  both  for  consultation  and  for  judicature.  They 
authorize  these  councils  to  try  the  military  oflenses  of  sol- 
diers ;  and  therefore,  by  an  inference  which  is  stronger 
than  silence,  authorize  us  to  conclude  that  the  Governor 
had  no  power  to  subject  those  who  were  not  soldiers  to 
their  authority. 

The  result  then  is,  that  the  law  of  Holland  does  not 
allow  what  is  called  "  martial  law"  in  any  case;  and  that 
the  law  of  England  does  not  allow  it  without  a  necessity, 
which  did  not  exist  in  the  case  of  Mr.  Smith.  If,  then, 
martial  law  is  not  to  be  justified  by  the  law  of  England,  or 
by  the  law  of  Holland,  or  by  the  law  of  Demarara,  what 
is  there  to  hinder  me  from  affirming  that  the  members  of 
this  pretended  court  had  no  more  right  to  try  Mr.  Smith 
than  any  other  fifteen  men  on  the  face  of  the  earth ;  that 
their  acts  were  nullities,  and  their  meeting  a  conspiracy  \ 
that  their  sentence  was  a  direction  to  commit  a  crime ; 
that  if  it  had  been  obeyed,  it  would  not  have  been  an 
execution,  but  a  murder ;  and  that  they,  and  all  other 
parties  engaged  in  it,  must  have  answered  for  it  with  their 
lives." 


Presidenfs  Powers — Martial  Law —  Webster's  Speech.    73 

XVII. 

Comparison  between  the  powers  of  the  President  of  the  United 
States  and  of  the  Governor  of  New  York. — Federalist, 
No.  69. 

'*  The  President  is  to  be  Commander-in-Chief  of  the 
army  and  navy  of  the  United  States.  In  this  respect  his 
authority  would  be  nominally  the  same  as  the  King  of 
Great  Britain,  but  in  practice  much  inferior  to  it.  It 
would  amount  to  nothing  more  than  the  supreme  com- 
mand and  direction  of  the  military  and  naval  forces,  as 
first  general  and  admiral  of  the  Confederacy;  while  that 
of  the  British  king  extends  to  the  declaring  of  war,  and  to 
the  raising  and  equipping  of  fleets  and  armies ;  all  which 
by  the  constitution  under  consideration  would  appertain 
to  the  legislature." 


XVIII. 


What  is  Martial  Law  9 —  Wellington's  Speeches,  733. 

"I  contend  that  martial  law  is  neither  more  nor  less 
than  the  will  of  the  general  who  cammands  the  army. 
In  fact,  martial  law  means  no  law  at  all ;  therefore  the 
o-eneral  who  declares  martial  law,  and  commands  that  it 
shall  be  carried  into  execution,  is  bound  to  lay  down  dis- 
tinctly the  rules, -and  regulations,  and  limits  according  to 
which  his  will  is  to  be  carried  out.  Now  I  have,  in  an- 
other country,  carried  out  martial  law;  that  is  to  say,  I 
have  governed  a  large  proportion  of  the  population  of  a 
country  bj'  my  own  will.  But  then,  what  did  I  do  ?  I 
declared  that  the  country  should  be  governed  according 
to  its  own  national  law,  and  I  carried  into  execution  that 
my  so  declared  will." 


XIX. 


Speech  of  Daniel  Webste7\  in  the  House  of  Representatives, 
during  the  War  of  1812. — Annals  of  Congress,  (13^A 
Cong.,)  Vol  1,  p.  886. 

Mr.  Webster  said:  "If  the  proposition  were  to  consider 
whether  it  was  necessary  to  provide  additional  legal  pun- 
ishments for  any  description  of  offense,  he  should  see  no 
3 


74  Appendix. 

objection  to  the  reference  of  the  subject  to  a  committee. 
If  illegal  intercourse  existed  with  the  enemy,  he  should 
go  as  far  as  any  one  in  applying  constitutional  remedies 
to  that  evil.  But  this  resolution  proposes,  in  effect,  to  con* 
sider  whether  it  is  not  expedient  to  try  accusations  for 
treason  before  military  instead  of  civil  tribunals.  How- 
ever glaring  may  be  the  idea,  yet  such  is  in  truth  the  real 
nature  of  the  proposition  it  is  to  change  the  forum  for  the 
trial  of  treason.  The  mover  of  the  resolution  and  the 
gentleman  from  the  State  of  Georgia  (Mr.  Troup)  have 
not  left  any  doubt  on  this  subject.  They  have  alluded  to 
cases  which  they  suppose  the  resolutions  to  embrace,  and 
for  which  they  deem  it  necessary  to  provide  military  pun- 
ishment. But  what  is  the  nature  of  those  cases?  Are 
they  not  cases  of  treason  ?  It  is  said  information  has  been 
communicated  to  the  enemy,  very  material  to  him,  respect- 
ing the  operations  of  our  own  forces,  by  citizens  of  the 
United  States.  Signals  are  said  to  have  been  made  for 
this  purpose  on  the  St.  Lawrence  and  elsewhere.  Do 
gentlemen  suppose  that  the  act  of  communicating  to  the 
enemy  important  intelligence,  whether  by  signals  or  other- 
wise, whereby  he  is  better  able  to  defend  himself  or  attack 
his  adversary  is  not  treason  ?  Is  not  this  giving  aid  and 
comfort  to  the  enemy?  May  it  not  be  in  many  cases  the 
most  important  service  which  can  be  rendered  him  ?  Cer- 
tainly, sir,  all  such  offenses  as.  gentlemen  have  mentioned 
are  provided  for  by  law,  and  adequate  penalties  annexed 
to  the  commission.  The  simple  question  before  us  is, 
whether  we  will  consider  the  propriety  of  taking  the  power 
of  trying  these  offenses  from  the  courts  of  law,  where  the 
Constitution  has  placed  it,  and  confer  it  on  the  military. 
Sir,  the  proposition  strikes  me  as  monstrous.  I  cannot 
consent  to  entertain  the  consideration  of  it  even  for  a  mo- 
ment. It  goes  to  destroy  the  plainest  constitutional  pro- 
visions. If  it  should  prevail  I  should  not  hesitate  to  pro- 
nounce it  a  most  enormous  stride  of  usurpation.  Nothing 
in  any  government  called  a  free  one,  even  in  the  worst  of 
times,  has  exceeded  it.  I  am  utterly  shocked  at  the  argu- 
ments offer.ed  in  favor  of  it.  When  the  mover  was  asked 
why,  in  the  case  he  mentioned,  the  offenders  could  not 
be  punished  for  treasonable  practices,  I  understood  him  to 
answer  that  on  trials  for  treason  in  courts  of  law  the  testi- 
mony of  two  witnesses  was  required  ;  but  if  the  trial  could 
be  transferred  to  a  military  tribunal  the  two  witnesses 
could  be  dispensed  with.  Are  we  now  gravely  to  consider 
upon  a  proposition  of  which  this  is  among  the  professed 
objects  ?     The  gentleman  from  Georgia  (Mr.  Troup)  ob- 


Wehsier^s  Speech —  Wirfs  Opinion.  75 

served,  that  when  persons  had  heen  apprehended  for 
offenses,  they  had  been  rescued  b}^  habeas  corpus  issued  by 
the  civil  magistrate.  And  are  we  to  deliberate  whether 
it  be  not  proper  for  us  to  prevent  the  delivery  of  the  citi- 
zens of  this  country  from  illegal  arrests  and  imprisonment 
by  the  interposition  of  their  constitutional  remedy,  their 
writ  of  habeas  corpus?  The  Constitution  contains  no  pro- 
vision more  valuable;  it  makes  no  injunction  more  direct 
and  imperative  than  those  respecting  trials  for  treason,  and 
the  benefit  of  the  habeas  corpus. 

'^  Treason  is  not  left  to  be  defined,  even  by  the  highest 
courts  of  law.  It  was  foreseen  that,  in  times  of  commo- 
tion, victims  might  be  sacrificed  to  constructive  treason  ; 
that  doctrine  which,  in  other  places  and  other  times,  has 
shed  so  much  innocent  blood,  and  which  brought  Algernon 
Sydney  to  the  scaffold.  The  Constitution,  therefore,  de- 
fines treason,  and  prescribes  the  mode  of  proof.  But 
what  is  there  in  the  worst  cases  of  constructive  treason 
that  can  be  compared,  in  point  of  enormity,  to  the  propo- 
sition now  before  us  ?  This  is  not  to  give  a  latitude  of 
construction  to  the  judge;  it  is  to  take  the  cause  away 
from  the  j  udge,  and  carry  it  to  the  camp.  Instead  of  indict- 
ment, or  arraignment,  and  trial,  it  proposes  the  summary 
process  of  martial  law.  If  the  proposition  should  pass 
into  a  law  it  takes  away  the  constitutional  definition  of 
the  offense;  it  takes  away  the  prescribed  mode  of  proof  ; 
it  takes  away  the  trial  by  jury ;  it  takes  away  the  civil 
tribunal,  and  establishes  the  military.  On  a  resolution  of 
this  sort,  I  cannot  believe  the  House  will  consent  to 
deliberate." 


XX. 


Opinion  of  William  Wirt.     Attorney  General' s  Opinions,  Vol. 
2,  p.  192. 

"This  being  a  case,  however,  of  life  and  death,  I  beg 
leave  to  recall  to  your  recollection,  sir,  that  by  the  64th 
article  of  the  Rules  and  Articles  of  War,  it  is  required 
that  general  courts-martial  shall  not  consist  of  less  than 
thirteen,  where  that  number  can  be  aonvened  without  mani- 
fest  injury  to  the  service.  The  court  in  the  case  of  William- 
son having  consisted  of  jive  commissioned  ofiScers  only, 
was  not  a  legal  court  if  thirteen  could  have  been  convened 
xoithout  manifest  injury  to  the  service.'' 

"The  phrase,  you  will  observe,  is  not  'where  that  uum- 


76  Appendix. 

ber  (thirteen)  can  be  conceniently  convened,'  but  where 
they  can  be  convened  at  all,  not  only  \\\\h.o\xi probable  injury, 
but  without  mariifest  injury  to  the  service. 

''  It  is  difficult  to  conceive  an  emergenc}^  in  time  of  peace 
so  pressing  as  to  disable  the  general  officer  who  orders  the 
court  from  convening  thirteen  commissioned  officers  on  a 
trial  of  life  and  death,  without  manifest  injury  to  the  service. 

"And  if  a  smaller  number  act  without  such  manifest 
emergency,  I  repeat  that  they  are  not  a  lawful  court,  and 
an  execution  under  their  sentence  would  be  murder. 

"With  all  the  respect,  therefore,  which  we  ought  to  feel 
for  our  officers,  I  suggest  to  you,  sir,  as  a  matter  of  legal 
propriety,  that,  in  every  case  of  life  and  death  at  least,  the 
President  ought  to  be  satisfied  of  the  manifest  injury  which 
the  service  would  have  sustained  in  convening  a  court  of 
thirteen,  before  he  gives  his  sanction  to  a  sentence  of  death 
by  a  smaller  number." 


XXI, 


What,  in  Contemplation  of  Law,  is  a  Time  of  Peace.     From 
Coke  upon  Littleton — Lib.  3,  sec.  412,  ^''  of  Descents.'' 

"  Per  occupation  en  temps  de  guerre.'' 

"First,  it  is  necessarie  to  be  knowne,  what  shall  bee  said 
time  of  peace,  tempus  pads;  and  what  shall  be  said,  tempus 
belli  sive  guerroe,  time  of  war  re.  Tempus  pads  est  quando 
cancellariaet  alioe  curice  regis  sunt  opertce  quibus  lexfiehit  cuicun- 
que  pront  fieri  eonsuevit.  And  so  it  was  adjudged  in  the 
case  of  Rogers,  Mortimer,  and  of  Thomas,  Earle  of  Lan- 
caster. 

"  Uirum  terra  sit  gyfrrina  necne,  naturaliter  debet  judicari  per 
recorda  regis  et  eorum,  qui  curias  regis  per  legem  terrce  custodi- 
unt  et  gubernant,  sed  non  alio  modo. 

"And  therefore,  when  the  courts  of  justice  be  open,  and 
the  judges  and  ministers  of  the  same  may  by  law  protect 
men  from  wrong  and  violence,  and  distribute  justice  to 
all,  it  is  said  to  be  time  of  peace.  So,  when  by  invasion, 
insurrection,  rebellions,  or  such  like,  the  peaceable  course 
of  justice  is  disturbed  and  stopped,  so  as  the  courts  of  jus- 
tice be  as  it  were  shut  up,  et  silent  legis  inter  arina,  then  it 
is  said  to  be  time  of  warre  ;  and  the  triall  hereof  is  by  the 
records,  and  judges  of  the  court  of  justice  ;  for  by  them  it 
will  appeare  whether  justice  had  her  equal  1  course  of  pro- 
ceeding at  that  time  or  no,  and  this  shall  not  be  tried  by 
jury." 


Gme  of  Theobald  Wolfe  Tone.  ^t 


XXII. 

Case  of  Theobald  Wolfe  Tone,  in  1798.     27  State  Trials, 

p.  615. 
Mr.  Tone  came  from  Ireland  to  America  in  1795. 
"  Here  he  did  not  remain  many  months.  He  tendered 
his  services  to  the  French  Directory,  and  having  met 
with  all  the  encouragement  he  could  desire,  he  procured 
a  passage  to  France,  Avhere  he  arrived  in  the  beginning 
of  the  year  1796.  He  was  most  favorably  received  and 
appointed  to  a  commission  in  the  French  army.  His 
efforts  to  persuade  the  Directory  to  send  an  armament  to 
Ireland  have  been  previously  mentioned. 

"  The  first  expedition  having  failed  a  second  attempt 
was  made  in  the  autumn  of  1798.  This  was  equally  un- 
successful ;  and  Mr.  Tone,  who  was  on  board  the  HoCHE, 
French  line  of  battle  ship,  one  of  the  vessels  captured  by 
Sir  John  Borlase  Warren's  squadron,  off  the  Irish  coast, 
fell  into  the  hands  of  the  English  government,  and  was 
brought  to  trial,  by  court  martial  in  Dublin,  on  the  10th 
of  November,  1798."  "  The  court  was  composed  of  the 
following  members  : 

Maj.  Gen.  Loftus,  President. 

Col.  Vandeleur, 

Col.  Wolfe, 

Col.  Tytler, 

Lieut.  Col.  Daly, 

Major  Armstrong, 

Capt.  CORRY. 

Mr.  Tone  was  brought  into  court  under  a  corporal's 
guard  from  the  Provost  Marsh alsea,  where  he  had  been 
confined.  He  was  dressed  in  the  French  uniform — a 
large  and  fiercely  cocked  hat,  with  broad  gold  lace,  and 
the  tri-colored  cockade  ;  a  blue  uniform  coat-,  with  gold 
and  embroidered  collar,  and  two  large  gold  epaulets  ; 
blue  pantaloons  with  gold  laced  garters  at  the  knees,  and 
short  boots  bound  at  the  tops  with  gold  lace.  At  first  he 
seemed  a  good  deal  agitated,  and  called  for  a  glass  of 
water,  having  drank  which,  he  seemed  much  composed 
and  collected. 

The  charges  were  read  by  the  Judge  Advocate  against 
Mr.  Tone,  implicating  him  as  a  natural  born  subject  of 
our  lord  the  king,  having  traitorously  entered  into  the 
service  of  the  French  republic,  at  open  war  with  his 
majesty,  and  being  taken  in  the  fact,  bearing  arms  against 
his  king  and  country,  and  assuming  a  command  in  an 
enemy's  army  approaching  the  shore  of  his  native  land, 


T8  Ap2)endiar. 

for  the  purpose  of  invasion  and  acting  in  open  resistance 
to  his  majesty's  forces,  with  several  other  charges  of  a 
treasonable  nature. 

On  the  conclusion  of  the  charges  read  against  him,  he 
was  called  on  to  plead,  whether  guilty  or  not  guilty, 

Mr.  Tone,  bowing  to  the  Court,  said  he  presumed  this 
was  the  time  in  which  he  might  read  to  the  Court  the 
statements  of  a  few  points  which  he  had  committed  to 
paper,  for  the  occasion  of  his  trial. 

He  was  asked,  in  the  first  instance,  if  he  would  plead 
to  the  charge  against  him — guilty  or  not  guilty. 

He  answered  that  it  was  not  his  wish  to  avail  himself 
of  any  subterfuge,  or  to  give  the  Court  any  unnecessary 
trouble ;  he  was  ready  to  admit  the  whole  of  the  charge 
exhibited  against  him."     -^         -^         ^ 

"  I  conceive  that  I  stand  here  in  the  same  light  with 
our  emi(/res  :  and  if  the  indulgence  lie  within  the  power 
of  the  Court,  I  would  only  request  what  French  magna- 
nimity allowed  to  Charette  and  ta  the  Count  de  Som- 
breuil — the  death  of  a  soldier,  and  to  be  shot  by  a  file  of 
grenadiers.  This  is  the  only  favor  I  have  to  ask  ;  and  I 
trust  that  men  susceptible  of  the  niee  feelings  of  a 
soldier's  honor,  will  not  refuse  the  request. 

"  It  is  not  from  any  personal  feelings  that  I  make  this 
request,  but  from  a  respect  to  the  uniform  which  I  wear, 
and  to  the  brave  army  in  which  I  have  fought. 

"  From  papers  which  I  yesterday  delivered  into  the 
hands  of  the  brigade  majar,  it  will  be  seen  that  I  am  as 
regularly  breveted  an  officer  in  the  French  service,  as 
any  here  is  in  the  British  army,  and  it  will  be  seen  that 
I  have  not  my  commission  as  a' protection. 

Judge  Advocate  :  I  wish  you  to  be  aware,  that  your 
acceptance  of  a  commission  in  the  French  service, 
amounts  to  positive  proof  of  the  charge  advanced 
against  you  ;  but,  from  your  admissions  already,  I  sup- 
pose that,  by  the  production  of  those  papers,  you  merely 
want  to  show,  that  you  were  an  officer  in  the  French 
army."     *         -         ^ 

"  In  the  interval,  a  motion  was  made  in  the  Court  of 
King's  Bench,  by  Mr.  Curran,  on  an  affidavit  of  Mr. 
Tone's  father,  stating  that  his  son  had  been  brought 
before  a  bench  of  officers,  calling  itself  a  Court  Martial, 
and  by  them  sentenced  to  death. 

"  I  do  not  pretend  to  say,"  observed  Mr.  Curran, 
"  that  Mr.  Tone  is  not  guilty  of  the  charges  of  which  he 
is  accused  ;  I  presume  the  officers  were  honorable  men ; 
but  it  is  stated  in  the  affidavit,  a-^  a  solemn  fact,  that  Mr. 
Tone  had  no  commission  under  his  majesty,  and  there- 


Caxe  of  Tlmohald   Wolfe  Tone.  79  " 

fore  no  Court  Martial  could  have  cognizance  of  any 
crime  imputed  to  him,  while  the  Court  of  King's  Bench 
sat  in  the  capacity  of  the  great  criminal  Court  of  the 
land.  In  times  when  war  was  raging,  when  man  was 
opposed  to  man  in  the  field,  Courts  Martial  might  be 
endured  ;  but  every  law  authority  i^  with  me,  while  I 
stand  upon  this  sacred  and  immutable  principle  of  the 
Constitution — that  martial  law  and  civil  law  arc  incom- 
patible ;  and  that  the  former  must  cease,  with  the  exist- 
ence of  the  latter.  This  is  not  the  time  for  arguing  this 
momentous  question.  My  client  must  appear  in  this 
Court.  He  is  cast  for  death  this  day.  He  may  be 
ordered  for  execution  while  I  address  you.  I  call  on  the 
Court  to  support  the  law.  I  move  for  a  habeas  corpia 
to  be  directed  to  the  Provost  Marshal  of  the  barracks  of 
Dublin,  and  Major  Sandys,  to  bring  up  the  body  of  Mr. 
Tone. 

Lord  Chief  Justice  [Kilwarden]  :  Have  a  writ 
instantly  prepared. 

Mr.  CuRRAN  :  My  client  may  die  while  the  writ  ij 
preparing. 

Lord  Chief  Justice  :  Mr.  Sheriff,  proceed  to  the 
barracks,  and  acquaint  the  Provost  Marshal  that  a  writ 
is  preparing  to  suspend  Mr.  Tone's  execution  ;  and  see 
that  he  is  not  eocecnted. 

[The  Court  awaited,  in  a  state  of  the  utmost  agitation, 
the  return  of  the  Sheriff.] 

Mr.  Sheriff  :  My  Lords,  I  have  been  at  the  barracks, 
in  pursuance  of  your  order.  The  Provost  Marshal  says, 
he  must  obey  Major  Sandys.  Major  Sandys  says  he 
must  obey  Lord  Cornwallis. 

Mr.  CuRRAN  :  Mr.  Tone's  father,  my  Lords,  returns, 
after  serving  the  habeas  corpus.  He  says  General  Craig 
will  not  obey  it. 

Lord  Chief  Justice  :  Mr.  Sheriff,  take  the  body  of 
Tone  unto  your  custody.  Take  Provost  Marshal  and 
Major  Sandys  into  custody ;  and  show  the  order  of  this 
Court  to  General  Craig. 

Mr.  Sheriff  (who  was  understood  to  have  been  refused 
admittance  at  the  barracks)  returns  :  I  have  been  at  the 
barracks.  Mr.  Tone,  having  cut  his  throat  last  night,  is 
not  in  a  condition  to  be  removed.  As  to  the  second  part 
of  your  order,  I  could  not  meet  the  parties. 

[A  French  emigrant  surgeon,  whom  General  Craig  had 
sent  along  with  the  Sheriff",  was  sworn.] 

Surgeon  :  I  was  sent  to  attend  Mr.  Tone  this  mornings 


80  Appendix. 

at  four  o'clock.  His  windpipe  was  divided.  I  took 
instant  measures  to  secure  his  life  by  closing  the  wound. 
There  is  no  knowing,  for  four  days,  whether  it  will  be 
mortal.  His  head  is  now  kept  in  one  position.  A  sentinel 
is  over  him  to  prevent  Ids  speaking.  His  removal  would 
kill  him. 

Mr.  CuRRAN  applied  for  further  surgical  aid,  and  for 
the  admission  of  Mr.  Tone's  friends  to  him. 

[Refused.] 

Lord  Chief  Justice  :  Let  a  rule  be  made  for  suspend- 
ing the  execution  of  Theobald  Wolfe  Tone  ;  and  let  it  be 
served  on  the  proper  persons. 

[The  prisoner  lingered  until  the  19th  day  of  November, 
when  he  expired,  after  having  endured,  in  the  interval, 
the  most  excruciating  pain.] 


XXIII. 

Opinion  of  Enr/Ush  Counsel  on  the  Jamaica  Outrages. 

CASE   SUBMITTED   BY   THE   JAMAICA   COMMITTEE. 

"  The  committee  desires  to  be  advised  what  steps  are 
open  to  them  to  assist  their  fellow  subjects  in  Jamaica  to 
obtain  the  protection  of  the  law ;  and  if  the  law  has  been 
broken  to  bring  the  guilty  parties  to  justice ;  and  also 
what  steps  are  open  to  them  as  Englishmen  to  vindicate 
constitutional  law  and  order,  if  constitutional  law  and 
order  have  been  illegally  set  aside  by  the  local  Govern- 
ment in  Jamaica. 

"  With  this  are  sent  copies  of  the  despatch  from 
Governor  Eyre  to  Mr.  Secretary  Cardwell,  on  the  20th 
October,  1865,  and  also  of  the  address  of  the  Governor  to 
the  Jamaica  House  of  Legislature,  at  the  annual  meet- 
ing which  took  place  on  the  7th  of  November.  Copies 
are  also  sent  of  such  reports  cf  the  military  officers  as 
have  appeared  in  the  papers. 

"  Considering  for  the  present  nothing  but  these  official 
documents,  and  taking  for  granted  that  the  statements 
they  contain  are  all  true,  counsel  is  requested  to  advise  : 

"  1.  What  is  the  meaning  of  the  term  martial  law,  and 
what  is  the  legal  effect  of  a  proclamation  of  martial  law? 

"  2.  Are  there  grounds  foi-  concluding  that  Governor 
Eyre  has  acted  illegalh^  and  criminally-  in  the  mode  in 
which  he  states  that  he  has  proclaimed  and  enforced 
martial  law,  and  especially  in  removing  the  Hon.  G.  W. 
Gordon  from  Kingston  to  Morant  Bay,  and  there  handing 


opinion  of  En^/IisJi  Counsel  on  Jamaica  Outrage.       81 

him  over  to  Brigadier-General  Nelson  to  be  tried  by 
court-martial  ? 

"  3,  Could  Mr.  Gordon  be  legally  convicted  and  pun- 
ished by  court-martial  for  any  act  done  prior  to  the 
proclamation  of  martial  law,  or  for  any  act  done  beyond 
the  boundaries  of  the  proclaimed  district  ? 

"  4.  Are  officers  acting  in  enforcing  martial  law  exempt 
from  all  control  beyond  the  instructions  they  receive  from 
their  superior  officers,  if  not,  are  there  any  principles  ac- 
knowledged by  martial  law,  or  by  the  British  constitu- 
tion, which  would  render  it  illegal  (a)  to  continue  for 
several  days  shooting  down  men,  and  flogging  men, 
women,  and  chiklren,  and  burning  their  habitations,  in 
the  absence  of  any  appearance  of  organised  resistance  ; 
(/;)  to  inflict  punishment  without  or  before  trial  ;  (c)  to 
inflict  punishment  for  the  purpose  of  obtaining  evidence  ; 
{d)  to  inflict  death  for  or  on  the  evidence  of  looks  or 
gestures  ? 

"  5.  In  case  Governor  Eyre  or  his  suborniuate  officers 
have  been  guilty  of  illegal  acts  in  the  course  of  the  late 
proceedings  in  Jamaica,  what  are  the  proper  modes  of 
bringing  them  to  trial  for  such  illegal  acts  V 

"  6.  Are  any,  and  if  any  what,  proceedings  for  the 
above  purpose  open  to  private  persons  in  this  country? 

"  7.  The  last  question  has  reference  to  a  bill  of  indem- 
nity, if  one  should  be  passed  by  the  Jamaica  Legislature. 

"  OPINION. 

"  The  questions  asked  in  this  case  all  depend  more  or 
less  upon  the  general  question,  '  what  is  the  nature  of 
martial  law,  and  what  power  does  it  confer?'  We  will, 
therefore,  state  our  view  of  this  subject  before  answering 
the  specific  questions  asked,  and  we  must  do  so  at  some 
length  on  account  both  of  the  importance  and  the  ob- 
scurity of  the  subject.  The  expression  '  martial  law  '  has 
been  used  at  difl'erent  times  in  four  different  senses,  each 
of  which  must  be  carefully  distinguished  from  the  others. 

"  1.  In  very  early  times  various  systems  of  law  co- 
existed in  the  country — as  the  common  law,  the  ecclesi- 
astical law,  the  law  of  the  Court  of  Admiralty,  &c.  One 
of  these  was  the  law  martial,  exercised  by  the  constable 
and  marshal  over  troops  in  actual  service,  and  especially 
on  foreign  service.  As  to  this,  see  an  essay  on  the  '  Laws 
)f  War,'  by  Professor  Montague  Bernard,  in  the  '  Oxford 
^jssays '  for  1856. 

"  2.  The  existence  of  this  system  in  cases  of  foreign 
service  or  actual  warfare,  appears  to  have  led  to  attempts 
on  the  parts  of  various  sovereigns  to  introduce  the  same 


82  2±ppendix. 

system  in  times  of  peace  on  emergencies,  and  especially 
for  the  punishment  of  breaches  of  the  peace.  This  was 
declared  to  be  illegal  by  the  Petition  of  Eight,  as  we 
shall  show  more  fully  immediately.  {See  Hallam's  'Con- 
stitutional History,'  p.  240,  v.  i.,  7th  edition,  c.  v.,  near 
the  beginning.) 

"  3.  When  standing  armies  were  introduced,  the  powers 
of  the  constable  and  marshal  fell  into  disuse,  and  the  dis- 
cipline of  the  army  was  provided  for  by  annual  Mutiny 
Acts,  which  provide  express  regulations  for  the  purpose. 
These  regulations  form  a  code,  which  is  sometimes  called 
martial,  but  more  properly  military  law.  (Grant  and 
Gould,  2  H.  Blackstone,  69.') 

"  4.  Although  martial  law  in  sense  (1)  is  obsolete,  being 
superseded  by  military  law,  and  in  sense  (2)  is  declared 
by  the  Petition  of  Right  to  be  illegal,  the  expression  has 
survived,  and  has  been  applied,  as  we  think,  inaccurately 
and  improperly,  to  a  very  dilferent  thing,  namely,  to  the 
common-law  right  of  the  Crown  and  its  represetatives  to 
repel  force  by  force  in  the  case  of  invasii^n  or  insurrec- 
tion. We  shall  proceed  to  develope  and  illustrate  this 
view  of  the  subject. 

"  The  provisions  of  the  Petition  of  Eight  on  Martial 
Law  (3  chap,  i.,  c.  1)  are  contained  in  ss.  7,  8,  9,  10. 
These  sections  recite  that  commissions  under  the  Great 
Seal  had  lately  been  issued  to  certain  persons  io  proceed 
in  particular  cases  '  according  to  the  justice  of  martial 
law ;'  and  that  thereby  persons  had  been  put  to  death 
who,  if  deserving  of  death,  ought  to  have  been  tried  in 
the  ordinary  way,  whilst  others,  pleading  privilege,  had 
escaped.  Such  commissions  are  then  declared  to  be 
illegal ;  and  it  is  provided  that  henceforth  no  commis- 
sions of  like  nature  may  issue  forth  to  any  person  or 
persons  whatsoever. 

"  The  commissions  themselves  explain  the  nature  of 
the  system  which  the  Petition  of  Eight  prohibited.  Three, 
which  were  issued  shortly  before  it  passed,  are  given  in 
17  '  Evmer's  Foedera/  pp.  43,  246,  647.  They  are  dated 
respectively  24th  November,  1617  ;  20th  July,'  1620  ;  30th 
December,  1624.  The  first  is  a  commission  to  certain 
persons  for  the  government  of  Wales,  and  the  counties  of 
Worcester,  Hereford,  and  Shropshire.  It  directs  them  to 
call  out  the  array  of  the  county,  and  then  proceeds  to 
direct  them  to  lead  the  array — 

•'  '  As  well  against  all  and  singular  our  enemies,  as 
also  against  all  and  singular  rebells,  tray  tors  and  other 
offenders  and  their  adherents,  against  us  our  Crowne  and 
dignitie  within  the  said  principalitie  and   dominions  of 


Opinion  of  English  Counsel  on  Jamaica  Outrage.       83 

North  Wales  and  South  Wales,  the  marches  of  the  same 
and  counties  and  places  aforesaid,  and  with  the  said 
trajtors  and  rebells  from  tvme  to  tyme  to  fight,  and  them 
to  invade,  resist,  suppresse,  subdue,  slay,  kill,  and  put  to 
executi(ui  of  death,  by  all  ways  and  means,  from  tyme 
to  tyme  by  your  discretion.' 

"  'And  further  to  doe,  execute,  and  use  against  the 
said  enemies,  traytors,  rebells,  and  such  other  like  offend- 
ers and  their  adherents  afore-mentioned  from  tyme  to 
tyme  as  necessitie  shall  recpiire  by  your  discretion,  the 
law  called  the  martiall  lawe  according  to  the  law  mar- 
tiall,  and  of  such  offenders  appre  lended  or  being  brought 
in  subjection,  to  save  whom  you  shall  think  good  to  be 
saved,  and  to  slay,  destroie,  and  put  to  execution  of 
death,  such  and  as  many  of  them  as  you  shall  think 
nieete,  by  your  good  discretion,  to  be  put  to  death.' 

"  The  second  empowers  Sir  Robert  Maunsel  to  govern 
the  crews  of  certain  ships  intended  for  the  supj)ression 
of  piracy,  and  gives  him  '  full  powers  to  execute  and  take 
away  their  life,  or  any  member,  in  form  and  order  of 
martial  law.' 

"  The  third  is  a  commission  to  the  mayor  of  Dover, 
and  others,  reciting  that  certain  troops,  then  at  Dover, 
were  licentious,  and  empowering  them. 

"  '  To  proceed  accordmg  to  the  justice  of  martial  law 
against  such  soldiers  within  any  of  our  lists  aforesaid, 
and  other  dissolute  persons  joining  with  them,  or  any  of 
them,  as  during  such  time  as  any  of  our  said  troops  or 
companies  of  soldiers  shall  remain  or  abide  there,  and 
not  be  transported  thence,  shall,  within  any  of  the  places 
or  precincts  aforesaid,  at  any  time,  after  the  publication 
of  this  our  commission,  commit  any  robberies,  felonies, 
mutinies,  or  other  outrages  or  misdemeanors,  which  by 
the  martial  law  should  or  ought  to  be  punished  with 
death,  and  by  such  summary  course  and  order  as  is 
agreeable  to  martial  law,  and  as  is  used  in  armies  in  time 
of  war,  to  proceed  to  the  tiial  and  condenniation  of  such 
delinquents  and  offenders,  and  them  cause  to  be  execu- 
ted, and  put  to  death  according  to  the  law  martial,  for 
an  example  of  terror  to  others,  and  to  keep  the  rest  in 
due  awe  and  obedience.' 

"  The  distinctive  feature  of  all  these  commissions  is, 
that  they  authorise  not  merely  the  suppression  of  revolts 
by  military  force,  which  is  undoubtedly  legal,  but  the 
subsequent  punishment  of  offenders  by  illegal  tribunals 
which  is  the  practice  forbidden  by  the  Petition  of  Eight. 
In  illustration  of  this  we  may  compare  the  proceedings 
described  in  Governor  Eyre's  despatch  with  the  course 


84  Apj)e)idhj\ 

taken  by  a  lieutenant-general  and  his  provost-marslial  in 
the  reign  of  Queen  Elizabeth,  under  one  of  the  commis- 
sions declared  to  be  illegal  bv  the  Petition  of  Eight.  In 
1569  the  Earls  of  Northumberland  and  Westmoreland 
had  risen  and  besieged  and  taken  Barnard  Castle,  and 
committed  other  acts  of  open  treasonable  warfare.  The 
rising  took  place,  and  was  suppressed,  in  the  course  of 
the  month  of  December.  The  Earl  of  Sussex  received 
from  the  Queen  a  commission,  evidently  similar  to  the 
one  already  cited,  and  appointed  Sir  George  Bower  his 
provost-marshal.  Sir  George  Bower  made  a  circuit 
through  Durham  and  Yorkshire,  between  the  2d  and 
the  20th  of  January,  1569,  and  executed  at  various 
places  600  persons.  (Sharpe's  '  Memorials  of  the  Ee- 
bellion,'  No.  1,569,  pp.  99,  113,  121,  133,  140,  143,  153, 
163.) 

"  It  appears  from  Governor  Eyre's  despatch,  passing 
by  earlier  portions  which  contain  instances  of  acts  done 
by  the  so-called  courts-martial,  susceptible  perhaps  of  a 
construction  different  from  those  which  follow,  that  at 
daybreak  on  Monday,  the  16th  of  October  (paragraph 
41),  the  last  definite  act  of  violence  mentioned,  having 
taken  place  on  the  15th  {see  paragraph  33),  a  court  mar- 
tial sat  to  try  prisoners,  and  27  were  found  guilty  and 
hung.  By  the  18th  (paragraph  55 j,  many  rebels  had 
been  captured,  and  several  courts-martial  had  been  held 
and  capital  punishment  inflicted.  On  the  19th  (para- 
graph 57),  all  was  going  on  well  in  camp,  more  rebels 
had  been  captured  or  shot.  Afterwards,  on  the  23rd  of 
October,  Mr.  Gordon  was  hung.  As  Governor  Eyre 
mentioned  no  acts  of  violence  subsequent  to  that  above 
referred  to,  it  would  appear  that  these  executions  were 
punishments  for  past  offences,  and  not  acts  required  for 
the  suppression  of  open  in  surrection.  The  measures 
adopted  thus  resemble  those  taken  by  Sir  George  Bower, 
in  1569,  under  the  authority  of  the  commission  declared 
illegal  by  the  Petition  of  Eight.  As  to  the  legal  charac- 
ter of  such  punishments,  Lord  Coke  observes  (3rd  inst., 
c.  7,  p.  52),  '  If  a  lieutenant,  or  other  that  hath  commis- 
vsion  of  marshal  authority  in  time  of  peace,  hang,  or  oth- 
erwise execute  any  man  by  colour  of  marshal  law, 
this  is  murder ;  for  this  is  against  Magna  Charta,  c.  29.) 
(See  too  Hale,  Hist,  C.  L.  34.) 

"These  authorities  appear  to  sliow  that  it  is  illegal  for 
the  Crown  to  resort  to  martial  law  as  a  special  mode  of 
punishing  rebellion. 

"We  now  proceed  to  consider  the  authorities  which 
look  in  the  other  direction.     In  1799,  an  Act  of  the  Irish 


Opi7iion  of  Engliah   Counsel  on  Jamaica  OiUrar/e.       85 

Parliament  (39  Geo.  III.,  c.  11)  was  passed,  the  effect  of 
which  was  to  put  the  parts  of  the  country  which  were 
still  in  rebellion  under  military  command,  according  to 
a  system  therein  described.  The  preamble  states  that 
the  rebellion  had  been  already  suppressed,  and  it  sets 
forth  that  on  the  24th  of  May,  1798,  Lord  Camden  did, 
by  and  under  the.  advice  of  the  Privy  Council,  issue  his 
orders  to  all  general  officers  commanding  his  Majesty's 
forces,  to  punish  all  persons  acting,  ordering,  or  in  any 
way  assisting  in  the  said  rebellion,  according  to  martial 
law,  either  by  death  or  otherwise,  as  to  them  should  seem 
expedient,  and  did  by  his  yjroclamation  of  the  same 
date  ratify  the  same.  It  further  goes  on  to  recite,  that 
'by  the  wqse  and  salutary  exercise  of  his  Majesty's  un- 
doubted prerogrative  in  executing  martial  law,  for  de- 
feating and  dispersing  such  armed  and  rebellious  force, 
and  in  bringing  divers  rebels  and  traitors  to  punishment 
in  the  most  speedy  and  summary  manner,  the  peace  of 
the  kingdom  has  been  so  far  restored  as  to  permit  the 
course  of  the  common  law  partially  to  take  place,'  &c. 
And  in  the  body  of  the  Act  (section  6)  there  is  contained 
a  proviso  that  '  nothing  in  this  Act  shall  be  construed  to 
abridge  or  diminish  the  undoubted  prerogrative  of  his 
Majesty  for  the  public  safety,  to  resort  to  the  exercise  of 
martial  law  against  open  enemies  or  traitors.' 

"  It  is  impossible  to  suppose  that  such  a  declaration 
as  this  should  operate  as  a  repeal  of  the  Petition  of 
Right  as  regarded  Ireland,  though  the  language  of  the 
two  Acts  appears  to  be  conflicting.  As,  however,  it 
merely  declares  an  '  undoubted  prerogrative  of  the  Crown,' 
it  cannot  refer  to  what  the  petition  of  right  expressly  de- 
nied to  exist,  and  therefore  it  must  probably  be  con- 
strued to  mean  only  that  the  crown  has  an  undoubted 
prerogative  to  attack  an  army  of  rebels  by  regu- 
lar forces  under  military  law,  conducting  themselves 
as  armies  in  the  field  usually  do.  This  construc- 
tion is  strengthened  by  the  fact  that  traitors  are 
coupled  with  open  enemies.  Now,  the  force  used 
against  an  invading  army  is  used  for  the  purpose,  not 
of  punishment,  but  of  conquest,  and  thus  the  words 
in  the  Irish  Act  would  mean  only  that  the  Crown  has  an 
undoubted  prerogative  to  carry  on  war  against  an  army 
of  rebels,  as  it  would  against  an  invading  army,  and  to 
inflict  upon  them  such  punishment  as  might  be  necessary 
to  suppress  the  rebellion,  and  restore  the  peace,  and  to 
permit  the  common  law  to  take  efl'ect. 

'*  As  soon,  however,  as  the  the  actual  conflict  was  at 
an  end,  it  would  be  the  duty  of  the  military  authorities 

t 


86  Appendix. 

to  hand  over  their  prisoners  to  the  civil  powers.  This 
was  affirmed  by  the  case  of  Wolfe  Tone,  who  having 
been  captured  when  the  French  surrendered,  was  sent 
up  to  Dublin  Barracks,  tried  by  a  court-martial,  and 
sentenced  to  death.  The  Court  of  King's  Bench  imme- 
diately granted  a  Jiaheas  corpus,  and  directed  the  sheriff 
to  take  into  custody  the  provost-marshal  and  other  offi- 
cers in  cliarge,  and  to  see  that  Mr,  Tone  was  not  execu- 
ted. (27  St.  Tr.,  624-5).  No  doubt  many  military 
executions  took  place  during  the  Irish  rebellion,  but  an  Act 
of  Indemnit}'  was  passed  in  respect  to  them,  and  it  must 
also  be  remembered  that  by  the  laws  of  war,  (which  are 
a  branch  of  morals  rather  than  of  law  proper,  and  prevail 
not  over  soldiers,  but  as  between  contending  armies,) 
many  severities  may  be  justified,  such  as  the  refusal  of 
quarter,  and  the  putting  to  death  of  soldiers  who  surren- 
der at  discretion  :  and  thus  in  a  war  like  that  in  1798, 
much  might  be  done  which  might  pass  under  the  name 
of  martial  law,  but  which  in  reality  would  be  no  more 
than  incidents  of  ordinary  warfare  conducted  with  unu- 
sual rigor. 

"  Another  argument  is  drawn  from  the  Annual  Mutiny 
Acts.  They  contain  a  declaration  that  '^no  man  can  be 
forejudged  of  life  or  limb,  or  subjected  to  any  punish- 
ment within  this  realm  by  martial  law  in  time  of  peace/ 
This  has  been  construed  to  imply  that  in  times  of  war 
or  disturbance  martial  law  is  legal.  As  to  this,  however, 
it  must  be  remembered  that  in  its  original  meaning,  the 
phrase  martial  law  included  what  we  now  understand 
by  military  law,  and  that  one  principal  object  of  the 
commissions  declared  to  be  illegal  by  the  Petition  of 
Right,  was  the  creation  of  military  tribunals  without 
Parliamentary  authority.  Hence  the  words  '  in  peace,' 
which  were  not  in  the  first  Mutiny  k.ci,  probably  mean 
that  standing  armies  and  military  courts  were  in  time  of 
peace,  illegal,  except  in  so  far  as  they  were  expressly  au- 
thorised by  Parliament. 

"The  whole  doctrine  of  martial  law  was  discussed  at 
great  length  before  a  committee  of  the  House  of  Com- 
mons, which  sat  in  the  year  1849,  to  inquire  into  certain 
transactions  which  had  taken  place  at  Ceylon.  Sir  David 
Dundas,  then  Judge  Advocate  General,  explained  his 
view  upon  the  subject  at  length,  and  was  closely  exam- 
ined upon  it  by  Sir  Robert  Peel,  Mr.  Gladstone,  and 
others.  The  following  answers,  amongst  others,  throw 
much  light  on  the  subject : — 

"  '  5,437.  The  proclamation  of  martial  law  is  a  notice 
to  all  those  to  whom  the  proclamation  is  addressed,  that 


Opinion  uf  Engliah  Counsel  on  Jamaica  Outrage.       8T 

there  is  now  another  measure  of  law  and  another  mode 
of  proceeding  than  there  was  before  that  proclamation.' 

*' '  5,459.  If  a  governor  fairly  and  truly  believes  that 
the  civil  and  military  power  which  is  with  him,  and  such 
assistance  as  he  might  derive  from  the  sound-hearted 
part  of  the  Queen's  subjects  is  not  enough  to  save  the 
life  of  the  communitj^,  and  to  suppress  the  disorder,  it  is 
his  duty  to  suppress  by  this  (i.  e.,  by  martial  law)  or  ary 
other  means.' 

"  '  5,476.  (Sir  Robert  Peel).  A  wise  and  courageous 
man,  responsible  for  the  safety  of  a  colonj^  would  take 
the  law  into  his  own  hands  and  make  a  law  for  th 3  occa- 
sion rather  th-an  submit  to  anarchy. — J,  I  think  that  a 
wise  and  courageous  man,  would,  if  necessary,  make  a 
law  to  his  own  hands,  but  he  would  much  rather  take  a 
law  which  is  already  made — and  I  believe  the  law  of 
England  is,  that  a  governor,  like  the  Crown,  has  vested 
in  him  the  right,  where  the  necessity  arises,  of  judging 
of  it,  and  being  responsible  for  his  work  afterw.-irds,  so 
to  deal  with  the  laws  as  to  supersede  (lieni  all,  and  to 
proclaim  martial  law  for  the  safety  of  the  colony.' 

"  '  5,477.  (In  answer  to  Mr.  Gladstone.)  I  say  he  is  re- 
sponsible just  as  I  am  responsible  for  shooting  a  man  on 
the  King's  highway  who  comes  to  rob  me.  If  I  mistake 
my  man,  and  have  not,  in  the  opinion  of  the  judge  and 
jury  who  try  me,  an  answer  to  give,  I  am  responsible.' 

"  *  5,506.  My  notion  is,  that  martial  law  is  a  rule  of  ne- 
cessity, and  that  when  It  is  executed  by  men  empowered 
to  do  so,  and  they  act  honestly,  rigorously,  and  vigor- 
ously, and  with  as  much  humanity  as  the  case  will  permit 
in  discharge  of  their  duty,  they  have  done  that  which 
every  good  citizen  is  bound  to  do.' 

"  Martial  law  has,  accordingh^  been  proclaimed  in  sev- 
eral colonies — viz.,  at  the  Cape  of  Good  Hope,  in  Ceylon, 
in  Jamaica,  and  in  Demerara. 

"  The  views  thus  expressed  by  Sir  David  Dundas  ap- 
pear to  us  to  be  substantially  correct.  According  to 
them  the  words  'martial  law,'  as  used  in  the  expression 
proclaiming  martial  law,  might  be  defined  as  the  assump- 
tion, for  a  certain  time,  by  the  officers  of  the  Crown  of 
absolute  power,  exercised  by  military  force,  for  the  pur- 
pose of  suppressing  an  insurrection  or  resisting  an  inva- 
sion. The  '  proclamation'  of  martial  law,  in  this  sense, 
would  be  only  a  notice  to  all  whom  it  might  concern  that 
Such  a  course  was  about  to  be  taken.  We  do  not  think 
it  is  possible  to  distinguish  m.artial  law,  thus  described 
and  explained,  from  the  comm  on  law  duty  which  is  in- 
cumbent on  every  man,  and  especially  on  every  magis- 


■   -^  Appendix. 

^rate,  to  use  aii}^  degree  of  physical  force  that  may  be 
voqnirecl  for  the  suppression  of  a  violent  insurrection, 
;ind  which  is  incumbent  as  well  on  soldiers  as  on  civilians, 
t'le  soldiers  retaining  during  such  service  their  special 
1  lilitary  obligations.  (On  this  subject  see  Lord  Chief 
Jastice  Tindal's  charge  to  the  grand  jury  of  Bristol,  in 
1832,  quoted  in  1  Euss.  on  Cr.  286  n.)  Thus,  for  instance, 
v/e  apprehend  that  if  martial  law  had  been  proclaimed 
in  London  in  1780,  such  a  proclamation  would  have 
inade  no  difference  whatever  in  the  duties  of  the  troops 
or  the  liabilities  of  the  rioters.  Without  any  such  pro- 
clamation the  troops  were  entitled,  and  bound  to  destroy, 
life  and  property  to  any  extent  which  might  be  necessary 
to  restore  order.  It  is  difficult  to  see  what  further  au- 
1  hority  they  could  have  had,  except  that  of  punishing  the 
offenders  afterwards,  and  this  is  expressly  forbidden  by 
the  Petition  of  Eight. 

"  We  may  sum  up  our  view  of  martial  law  in  general 
in  the  following  propositions  : 

"  1.  Martial  law  is  the  assumption  by  the  officers  of  the 
Oown  of  absolute  power,  exercised  by  military  force,  for 
the  suppression  of  an  insurrection,  and  the  restoration 
of  order  and  lawful  authority. 

"  2.  The  officers  of  the  Crown  are  justified  in  any  ex- 
ertion of  physical  force  extending  to  the  destruction  of 
1  .i'e  and  property  to  any  extent,  and  in  any  manner  that 
may  be  required  for  this  purpose.  They  are  not  justified 
i.i  the  use  of  excessive  or  cruel  means,  but  are  liable 
(•>illy  or  criminally  for  such  excess.  They  are  not  jus- 
tified in  inflicting  punishment  after  resistance  is  sup- 
•;ress"ed,  and  after  the  ordinary  courts  of  justice  can  be 
vo-opened.  The  principle  by  which  their  responsibility 
i  '•,  measured  is  well  expressed  in  the  case  of  Wright  v. 
i^'lfzgerald,  27  St.  Ni.  p.  65.  M.  Wright  was  a  French 
Master  of  Clonmel,  who,  after  the  suppression  of  the 
I.ish  rebellion,  in  1798,  brought  an  action  against  Mr. 
I^itzgerald,  the  sheriif  of  Tipperary,  for  having  cruelly 
.logged  him  without  due  inquiry.  Martial  law  was  in  full 
1'  )rce  at  that  time,  and  an  Act  of  Indemnity  had  been 
;)issed  to  excuse  all  breaches  of  the  law  committed  in 
.  le  suppression  of  the  rebellion.  In  summing  up.  Jus- 
tice Chamberlain,  with  whom  Lord  Yelverton  agreed, 
viid:— 

"  '  The  jury  were  not  to  imagine  that  the  Legislature, 

oy  enabling  magistrates  to  justify  under  the  Indemnity 

:Jill,  had  released  them  fro>m  the  feelings  of  humanity,  or 

).u'mitted  them  wantonly  to  exercise  power,  even  though  it 

\,  ere  to  put  down  rebellion.     They  expected  that  in  all 


opinion  of  English   Counsel  on  Jamaica  Outrage.       89 

cases  there  should  be  a  grave  and  serious  examination 
'iito  the  conduct  of  the  supposed  criminal,  and  every  act 
should  show  a  mind  intent  to  discover  guilt,  not  to  inflict 
torture.  By  examination  or  trial  he  did  not  mean  that 
sort  of  examination  and  trial  which  they  were  now  engaged 
in,  but  such  examination  and  trial — the  best  the  nature  of 
the  case  and  existing  circumstances  should  allow  of .  That 
this  must  have  been  the  intention  of  the  Legislature  was 
manifest  from  the  expression,  '  magistrates  and  all  other 
persons,'  which  provide  that  as  every  man,  whether  mag- 
istrate or  not,  was  authorised  to  suppress  rebellion,  and 
was  to  be  justified  by  that  law  for  his  acts,  it  is  required 
that  he  should  not  exceed  the  necessity  which  gave  him 
the  power,  and  that  he  should  show  in  his  justification 
that  he  had  used  every  possible  means  to  ascertain  the 
guilt  which  he  he  had  punished ;  and,  above  all,  no  devia- 
tion from  the  common  principles  of  humanity  should  ap- 
pear in  his  conduct.' 

"  M.  Wright  recovered  £500  damages  ;  and  when  Mr. 
Fitzgerald  applied  to  the  Irish  Parliament  for  an  indem- 
nitj^  he  could  not  get  one. 

"  3.  The  courts-martial  as  tliey  are  called,  by  which 
martial  law  in  this  sense  of  the  word  is  administered, 
are  not,  properly  speaking,  courts-martial  or  courts  at 
all.  They  are  mere  committees  formed  for  the  purpose 
of  carrying  into  execution  the  discretionary  power  as- 
sumed by  the  Government.  On  the  one  hand,  they  are 
not  obliged  to  proceed  in  the  manner  pointed  out  by  the 
Mutiny  x\ct  and  Articles  of  War.  On  the  other  hand,  if 
they  do  so  proceed,  they  are  not  protected  by  them  as 
the  members  of  a  real  court-martial  might  be,  except  in 
so  far  as  sucli  proceedings  are  evidence  of  good  faith. 
They  are  justified  in  doing,  with  any  forms,  and  in  any 
manner,  whatever  is  necessary  to  suppress  insurrection 
and  to  restore  peace  and  the  authority  of  the  law.  They 
are  personally  liable  for  any  acts  which  they  may  commit  in 
excess  of  that  power,  even  if  they  act  in  strict  accordance 
with  the  Mutiny  Act  and  Articles  of  War. 

"  Such  in  general  we  take  to  be  the  nature  of  martial 
law. 

"  We  noAv  proceed  to  examine  the  Act  of  the  Jamaica 
Legislature  under  which  Governor  Eyre  appears  to  have 
acted,  as  we  presume  regularly. 

"  The  Act  is  9  Vict.,  cap.  30,  and  is  a  consolidation  of 
the  laws  relating  to  militia.  The  sections  bearing  on  the 
subject  of  martial  law  are  as  follows  : — S.  95  constitutes 
a  body  called  a  council  of  war ;  s.  96  is  in  these 
w^ords  :     'And    whereas   the  appearance  of  public  dan- 


90  Appendix. 

ger  by  invasion  or  otherwise,  may  sometimes  make  the 
imposition  of  martial  law  necessarj^  yet,  as  from  ex- 
perience of  the  mischief  and  calamities  attending  it,  it 
must  ever  be  considered  as  one  of  the  greatest  of  evils  : 
Be  it  therefore  enacted  that  it  shall  not  in  the  future  be 
declared  or  imposed  but  by  the  opinion  and  advice  of  a 
council  of  a  war,  consisting  as  aforesaid,  and  that  at  the 
end  of  30  days  from  the  time  of  such  martial  law  being 
declared,  it  shall,  ipso  facto  determine,  unless  continued 
by  the  advice  of  a  council  of  war  as  aforesaid,'  S.  97 
empowers  the  governor,  with  such  advice  as  aforesaid,  to 
declare  particular  districts  to  be  under  martial  law,  and 
to  except  others.  S.  117  says  that  '  This  Act  .shall  con- 
tinue to  be  in  force  notwithstanding  and  during  martial 
law.' 

*'  It  is  a  grave  question  wdiether  this  Act  be  considered 
to  confer  upon  Governor  Eyre  any  other  power  than  he 
already  possessed  at  common  law  the  Act  itself  would  be 
valid.  The  powers  of  the  Jamaica  Legislature  are  de- 
rived not  from  Parliament,  but  from  Royal  Commission. 
As  the  Crown  cannot  authorise  legislation  inconsistent 
with  the  law  of  England,  it  could  not  authorise  the  Ja- 
maica Legislature  to  confer  upon  the  Governor  or  any 
one  else  powers  inconsistent  with  the  ])ro visions  of  the 
Petition  of  Eight.  It  is  indeed  provided  by  28  and  29 
Yict.,  cap.  63,  ss,  1 ,  2,  and  3,  that  no  colonial  law  shall 
be  deemed  to  be  void  on  the  ground  of  repugnancy  to 
the  law  of  England,  unless  it  is  repugnant  to  the  provis- 
ions of  any  Act  of  Parliament  applicable  to  an  such  col- 
ony by  express  words  or  necessary  intendment.  We  ap- 
prehend, however,  that  if  the  Act  of  the  Jamaica  Legis- 
lature be  constructed  as  authorising  or  recognising  any- 
thing declared  illegal  by  the  Petition  of  Right,  it  is  re- 
pugnant to  a  provision  of  an  Act  of  Parliament  extend- 
ing by  necessary  intendment  to  the  colony  of  Jamaica. 

"  It  appears,  however,  that  the  Act  does  not  create 
any  new  power,  but  only  limits  the  existing  power,  and 
provides  regulations  under  which  it  is  to  be  exercised. 
It  provides  that  the  Governor  shall  not  proclaim  mar- 
tial law  without  the  advice  and  consent  of  a  council  of 
war,  constituted  in  a  certain  way,  and  that  when  pro- 
claimed it  shall  expire  ipso  facto  in  thirty  days.  It  also 
provides  that  its  operation  may  be  limited  (as  in  the 
present  case  it  was)  to  certain  districts. 

"  We  now^  proceed  to  the  consideration  of  the  the  spe- 
cific questions  contained  in  the  case. 

"  2  and  3,  The  legality  of  the  conduct  pursued  towards 
Mr.  Gordon  depends,  according  to  the  principles  stated 


Opinion  of  E'lglisli   Counsel  on  Jamaica  Oulraye.       \)\ 

above,  on  the  question  whether  it  was  necessary  for  the 
suppression  of  open  force,  and  the  restoration  of  legal 
authority,  to  put  him  to  death.  We  see  nothing  what- 
ever in  Governor  Eyre's  despatch,  which  affords  any 
ground  for  thinking  that  such  could  have  been  the  case. 
The  fact  that  Kingston  was  exempted  from  martial  law 
shows  conclusively  as  against  Governor  Eyre,  that  in  his 
opinion  no  necessity  for  the  assumption  of  arbitrary 
power  existed  then  and  there.  The  fact  that  Mr.  Gordon 
was  in  lawful  custody  shows  that  he  was  at  all  events 
disabled  from  doing  further  mischief,  however  guilty  he 
might  previously  have  been.  It  would  perhaps  be  too 
much  to  say  tliat  no  conceivable  state  of  things  could 
justify  the  treatment  which  he  received,  but  no  such 
facts  are  mentioned  in  Governor  Eyre's  despatch.  As 
to.  the  legal  power  of  the  officers  sitting  as  a  court- 
martial  at  Morant  Bay,  we  are  of  opinion  that  they  had 
no  powers  at  all  as  a  court-martial,  and  that  they  could 
justify  the  execution  of  Mr.  Gordon  only  if  and  in  so  far 
as  they  could  show  that  that  step  was  immediately  and 
unavoidably  necessary  for  the  preservation  of  peace  and 
the  restoration  of  order.  They  had  no  right  whatever  to 
punish  him  for  treason,  even  if  he  had  committed  it. 
Their  province  was  to  suppress  force  by  force,  not  to 
punish  crime. 

"  4.  This  question  is  answered  in  our  introductory  ob- 
servations. Cases  might  be  imagined  in  which  some  of 
the  acts  specified  might  be  justified.  In  a  case,  for  in- 
stance, where  the  loyal  part  of  the  population  were  (as 
in  the  case  of  the  Indian  mutiny)  greatly  outnumbered 
by  a  rebellious  population,  measures  of  excessive  severity 
might  be  absolutely  essential  to  the  restoration  of  the 
power  of  the  law ;  but  this  would  be  a  case  not  of  pun- 
ishment, but  of  self-preservation.  No  facts  stated  in 
Governor  Eyre's  despatch  appear  to  us  to  show  any  sort 
of  reason  for  such  conduct  in  Jamaica. 

"  5.  They  may  be  indicted  in  Middlesex  under  the 
provisions  of  4'2  Geo.  III.,  c.  85.  See,  too,  24  and  25 
Yict.,  c.  100,  s.  9.  They  may  also  be  impeached  in  Parlia- 
ment. 

"  6.  Any  person  in  this  country  may  prefer  a  bill  of 
indictment. 

7.  "  This  is  a  question  of  great  difficulty.  As  Governor 
Eyre's  consent  would  be  necessary  to  such  an  Act,  and 
as  he  could  not  pardon  himself,  w^e  are  inclined  to  think 
that  such  an  act  would  be  no  answer  to  an  indictment  in 
England.  Besides  this,  if  Governor  Eyre  has  committed 
any  crime  at  all,  it  is  a  crime  against  the  law  of  England. 
+ 


92  Ajjjyendia:. 

Whilst  governor,  he  could  not  be  made  criminally  re- 
sponsible in  Jamaica  (Mosfyn  v.  Fahrigas,  1  Smith's 
"Leading  Cases,"  p.  543,  4th  ed.)  It  is  not  competent 
to  the  Legislature  of  Jamaica  to  pardon  crimes  commit- 
ted against  the  laws  of  England. 

"  To  obviate  all  difficulty,  we  should  advise  that  if  such 
an  Act  were  passed,  a  petition  should  be  presented  to 
Her  Majesty,  praying  her  to  refer  to  the  Judicial  Com- 
mittee of  the  Privy  Council  the  question  whether  the 
Act  ought  to  be  disallowed,  and. that  the  petitioners 
might  be  permitted  to  show  cause  by  counsel  w4iy  it 
should  be  disallowed.  Unless  and  until  they  are  disal- 
low^ed  by  the  Queen,  the  acts  of  the  Jamaica  Legislature 
are  valid. 

"(Signed)        EDWAKD  JAMES. 

"  (Signed)        J.  FITZ-JAMES  STEPHEN. 

"  Temple,  January  18,  18G6." 


XXIV, 


Erujlish    Laio    Magazine   on   Martial    Law   in   Australia, 
November,  1861. 

In  the  southern  part  of  Kew  South  Wales,  in  the  direct 
line  (it  cannot  be  called  road)  between  the  township  of 
Yass  and  the  frontier  of  Victoria  is  a  small  mining  district 
or  gold  field,  which  bears  the  name  of  Lambing  Flat.  It 
acquired  that  name  we  presume  because  it  happened  to 
be  that  part  of  some  squatters's  domain  where  his  ewes 
were  wont  to  congregate  at  the  season  of  parturition. 
For  some  reason  or  other  Lambing  Flat  became  the  fav- 
orite resort  of  a  number  of  Chinese,  and  in  the  latter  end 
of  1860,  or  beginning  of  1861,  certain  feuds  arose  between 
the  Europeans  and  Celestials,  which  led  to  disturbances. 
A  determination  on  the  part  of  the  Europeans  to  expel 
the  Chinese  was  evinced,  at  the  time  we  have  mentioned, 
and  various  steps  were  taken  by  the  New  South  Wales 
government  to  protect  the  weaker  party,  but  without  any 
marked  result.  In  July  last,  the  police  had  arrested  a  few 
Europeans  who  had  been  unusually  demonstrative  in  their 
oposition  to  the  Chinese,  and  they  were  confined  in  their 
lock-up  of  the  police  station.  Hereupon  an  armed  or- 
ganization on  the  part  of  the  Europeans  took  place,  in 
order  to  liberate  the  accused.  The  police  numbered 
about  fifty ;  the  insurgents  about  three  thousand.     The 


EnglUh  Law  Migazine  on  Martial  Law  in  Audralia.     93 

parties  came  to  blows,  and  five  or  six  of  the  rioters,  or 
*'rowclies,"  as  we  find  them  called,  were  killed,  and  sev- 
eral wounded,  and  some  three  or  four  of  the  police  were 
also  wounded.  This  excited  the  Europeans  to  a  sort  of 
indignation  frenzy.  A  new  "organization"  was  initiated, 
the  result  of  which  was  that  the  police  abandoned  the 
place,  and  retreated  to  Yass.  This  naturally  alarmed 
the  Government.  Troops  were  sent  from"  Sydney  to 
Lambing  Flat,  and  to  give  to  this  little  band,  numbering, 
it  is  said,  not  more  than  one  hundred  and  twenty-five 
men,  a  degree  of  moral  force  beyond  the  mere  military 
display,  the  governor  of  the  colony  had  proclaimed  mar- 
tial laAV. 

This  expedient  has  often  been  resorted  to  by  colonial 
governors,  especially  in  the  southern  colonies,  during 
the  last  twenty  years.  Sir  George  Grey  did  so  in  New 
Zealand,  in  1815  ;  Sir  Charles  Hotham  did  so  in  1854, 
on  the  occurrence  of  certain  disturbances  at  Ballaarat  in 
Victoria  ;  Governor  Gore  Brown  resorted  to  the  same  ex- 
pedient in  New  Zealand,  on  the  occasion  of  the  celebrated 
Wirima  Kingis  armed  resistance  of  the  invasion  of  his 
mana,  or  tribal  right,  or  by  whatever  name  it  may  be 
called,  in  February,  1860. 

This  ready  resort  to  the  proclamation  of  martial  law, 
on  the  part  of  four  of  our  governors,  in  three  of  our 
southern  colonies,  seems  to  be  so  repugnant  to  all  our 
constitutional  notions,  that  we  propose  to  devote  a  few 
pages  to  the  consideration,  not  of  the  policy,  but  of  the 
legality  of  the  expedient.  For  this  purpose,  we  have 
nothing  more  to  do  with  the  merits  of  the  Chinese  dis- 
pute at  Lambing  Flat.  The  land  question  at  Taranaki 
is  equally  beside  the  purpose.  The  Ballaarat  riot,  se- 
rious enough  at  the  time  to  frighten  a  colonial  Secretary 
from  his  post,  and  generate  a  batch  of  Colonial  State 
trials,  has  been  forgotten  in  the  subsequent  orderly  state 
of  Yictoria,  and  the  greater  practical  importance  of  sub- 
sequent events  ;  and  we  only  allude  to  these  little  great 
events — little  to  us  ;  great  at  the  time  to  the  colonies — as 
an  introduction  to  the  somewhat  momentous  question, 
upon  which  we  propose  to  enter  :  Is  the  the  proclama- 
tion and  exercise  of  martial  law  in  our  colonies  legal 
or  illegal  ? 

The  governor  of  a  colony  exercises  a  delegated 
authority.  All  the  power  which  he  wields  and  exerts 
he  derives  from  the  queen.  He  does  not,  as  we  shall 
see  hereafter,  exercise  all  the  powers  and  prerogatives 
of  the  Crown,  but  only  such  parts  thereof  as  he  is 
authorized  to  administer.     His  powers   are  limited  and 


VU      •  Append  I, r. 

defined  by  the  instruments  by  which  those  powers 
are  communicated  to  him.  Of  course,  the  Queen 
cannot  confer  upon  him  powers  which  she  herself 
does  not  constitutionally  possess.  What,  then,  are 
the  Queen's  powers  and  prerogatives  as  to  the  exercise 
of  martial  law  ?  because,  if  she  hath  none,  she  can 
communicate  none. 

The  non-existence  of  this  power  in  the  Crown  seems 
to  have  been  completely  settled  by  the  Petition  of 
Rights  (1628),  and,  on  the  eve  of  that  great  enactment, 
during  the  injudicious  and  unpopular  Spanish  war 
(1626),  we  find,  from  a  passage  in  Rushworth,  that 
"  the  companies  of  soldiers  (who  had  then  recently 
returned  from  Cadiz)  were  scattered  here  and  there 
in  the  bowels  of  the  kingdom,  and  were  governed 
by  martial  law.  The  King  gave  commissions  to 
the  Lords-lieutenants  and  their  deputies,  in  case  of 
felonies,  robberies,  murders,  outrages  and  misdemeanors, 
committed  by  the  marines,  soldiers,  and  other  disorderly 
persons  joining  with  them,  and  to  proceed,  according 
to  certain  instructions,  to  the  trial,  judgment  and 
execution  of  such  offenders  as  in  time  of  war ;  and 
some  were  executed  under  these  commissions.  {Rush- 
worth,  Vol  /.,  419.) 

It  will  be  observed,  that  these  commissions,  so  far 
as  we  can  rel}^  on  the  authority  of  "Master  Rushworth, 
a  young  clerk  of  the  Parliament,"  were  confined  to 
soldiers  and  marines,  who  would  be  subject  to  the 
military  laws  in  England,  and  to  "  other  disorderly 
persons  joining  with  them,"  who  would  have  been  sub- 
ject to  military  authority,  if  composing  part  of  the 
army  in  the  field,  flaiirante  hello  {Darwin  v.  Keppel, 
2  Wils.).  Yet,  although  so  confined  to  persons  under 
the  military  law,  when  in  the  field,  and  therefore,  in 
that  day,  having  some  color  of  legality,  the  con- 
missions  for  the  exercise  of  martial  law  within  the 
realm,  were  ccmdemned  as  illegal  by  the  Petition  of 
Rights.  This  great  bulwark  of  our  liberties,  "  which 
everj'  Englishman  carries  with  him  to  the  colonies, 
as  part  of  his  birthright"  (Chalmers'  O|)inions),  com- 
mences by  reciting  the  "grievance  and  vexation"  of 
having  "  great  companies  of  soldiers,  dispersed  into 
divers  countries  of  the  nation,"  and  of  the  inhabitants 
•'  being  compelled  to  receive  them,  against  their  will." 
It  then  recited  the  statute  of  Edward  III.,  whereby 
it  is  "  declared  and  enacted,  that  no  man  shall  be 
prejudged  of  his  life  or  limb  against  the  Great  Charter 
and  law  of  the  land."     It  then  complains  that  "  divers 


English  Laiv  MiKjazim;  on  Martial  Law  in  Australia.      1)5 

commissions  had  issued,  giving  to  certain  persons 
>ower  and  authority  to  proceed,  within  their  lands, 
according  to  the  justice  of  martial  law,  -J^-  *  * 
by  pretext  wliereof  some  of  your  Majesty's  subjects 
have  been  *  -x-  ^  put  to  death,  when  and  where, 
if  by  the  hiws  and  statutes  of  the  land,  they  deserved 
death  by  the  same  laws,  and  statutes,  also  they  might, 
and  by  no  other  ought  to  be  judged  and  executed." 
The  petition  then  prays,  that  the  aforesaid  commissions 
for  proceeding  by  martial  law  may  be  revoked  and 
annulled,  and  that,  hereafter,  "  no  commission  of  a  like 
nature  may  issue  forth  ^  -x-  *  lest,  by  color  of 
them,  any  of  your  Majesty's  subjects  be  destroyed  or 
put  to  death,  contrary  to  the  laivs  and  francliwes  of  the 
land.'' 

To  this  petition  Charles  very  reluctantly  assented,  and 
it  became  part  of  the  law  of  the  land.  Strictly,  however, 
it  enacted  nothing  new.  It  was  declaratory  of  the  law 
which  had  been  in  existence — we  can  hardly  venture  to 
say  in  force — for  centuiies,  under  a  succession  of  char- 
ters (5  Edw.  III.  c.  9  ;  25  Edw.  III.  et  5,  c.  4 ;  28  Edw. 
III.  c.  3),  which,  however,  had  been  habitually  violated 
by  succeeding  sovereigns  and  almost  forgotten  by  the 
people.  This  celebrated  Act  is  said  to  have  been  drawn 
by  Sir  Edward  Coke  ;  and  so  far  as  martial  law  is  con- 
cerned, it  has  never  been  violated  since  the  "  Great 
Rebellion." 

There  is  a  curious  anecdote  connected  with  the  debate 
on  the  Petition  of  Right,  which  further  illustrates  the 
subject.  In  a  conference  between  the  two  Houses  of 
Parliament,  Serjeant  Ashle}^  the  King's  Serjeant,  ad- 
vanced the  dangerous  and  unconstitutional  doctrine  of 
the  existence  of  a  species  of  law  which  he  called  "  the 
law  of  the  State,"  or  "  the  law  of  State  necessity"  (as  a 
justification  of  the  obnoxious  commissions),  which  pro- 
ceeded not  by  the  law  of  the  land,  but  by  natural  equity. 
This  doctrine  appeared  to  their  lordships  so  very  mis- 
chievous, that  upon  the  motion  of  the  Earl  of  Warwick, 
Ashley  was  ordered  into  custody  for  advancing  it. 

Yet  he  admitted  that  martial  law  was  not  to  be  exer- 
cised in  time  of  peace,  lohen  recourse  may  he  had  to  the 
Kings  Courts.  (Park  His.,  vol.  ii.,  pp.  315,  329.)  This  last 
sentence  really  defines  the  state  of  war  and  peace.  So 
long  as  the  King's  Courts  are  open,  there  is  no  state  of 
war.  There  may  be  insurrection — there  may  be  rebel- 
lion— but  it  is  not  war.  But  inter  anna  silent  leges  ;  and 
it  is  said  that  when  a  country  is  completely  disorganized 
by  war,  and  the  Courts  of  Justice  have  been  violently 


''0  Ajypendix. 

closed  or  cannot  possibly  continue  to  sit,  the  exercise  of 
martial  law  becomes  legal.  But  what  meaning  has  the 
word  "  legal  "  in  the  above  substance  ?  During  such  a 
state  of  anarchy,  silent  loges,  there  is  an  end  of  all  law\ 
What  is  called  the  law  of  the  strongest  must  prevail. 
But  this  is  no  law  at  all ;  and  it  is  fortunate  if  force,  not 
law,  is  so  used  as  to  become  a  tolerable  substitute  for  the 
law,  which  has  been  silenced,  and  afford  some  protection 
to  the  people. 

The  opinions  of  the  best  lawyers  in  the  debate  on  the 
Petition  of  Right  were  decidedly  against  the  legality  of 
martial  law.  They  all  assert  that  the  exercise  of  martial 
law  in  time  of  peace  was  illegal,  and  that  it  is  only  capa- 
ble of  being  exercised,  out  of  the  King's  dominions,  over 
military  persons,  a,Tid  flagrante  hello.  They  also  show  that 
the  test  of  war  or  peace  within  the  kingdom,  is  whether 
the  King's  Courts  are  opened  or  closed ;  and  they  lay. 
down  the  principle,  that  insurrection  or  rebellion  is  not 
war  :  for  if  one  be  taken  in  rebellion,  he  must  bo  tried  in 
the  King's  Courts.  The  speeches,  in  full,  will  be  found 
in  Rushworth,  vol.  iii.,  app.  81.  Here  is  an  abstract  of 
them  :  Lord  Coke  said,  "I  shall  maintain  /w.s  helli.  But 
God  send  me  never,to  live  under  the  law^s  of  conveniency 
or  discretion.  Shall  the  soldier  and  the  justice  sit  on  one 
bench  ?  The  trumpet  will  not  let  the  crier  speak  in 
Westminster  Hall.  Non  bene  conveniuiif.  The  time  of 
peace  is  wdien  the  Courts  at  Westminster  are  open ;  for 
when  they  are  not  open,  you  may  then  have  a  commis- 
sion of  Oyer  and  Terminer ;  and  when  the  common  law 
can  determine  a  thing,  the  martial  law  ought  not.  Drake 
slew  Doughty  beyond  sea.  Doughty's  brother  desired 
an  appeal  to  the  Constables  and  Marshals'  Courts,  and 
Wray  and  the  other  Judges  decided  that  he  might  there 
sue.  We  make  no  law.  We  must  meditate,  rdd  lex  noh 
distinguit.  To  hang  a  man,  tempore  pacis,  is  dangerous  ; 
I  speak  not  of  prosecution  against  a  rebel.  He  may  be 
slain  in  the  rebellion ;  but  if  he  bs  taken,  he  cannot  be 
put  to  death  by  martial  law.  (Year  Book,  28  Edw.  II., 
M.  13.)  When  Courts  of  Law  are  open.  Martial  Law 
cannot  be  executed.  (5  Hen.  IV.,  30  Williamson's  Case.) 
The  constable  and  marshal  desired  an  addition  to  their 
commissions,  and  they  proceeded  against  some  according 
to  that  power ;  but  because  it  was  not  according  to  their 
ancient  power,  it  was  void  ;  for  they  cannot  do  anything 
according  to  the  additional  power  (  i.  e.,  power  to  exer- 
cise martial  law),  and  there  was  a  (writ  of;  prohibition 
to  stay  their  proceeding  under  the  additional  power. 
How  shall  the  soldier  know  how  to  obey  them  ?  They 
are  not  under  the  great  seal." 


English  Law  Magazine  on  Martial  Law  in  Australia.      97 

Mr.  Banks  said  :  "  We  have  no  time  of  Avar  when  the 
king's  courts  are  open  ;"  and  Mr.  Ra}^  laid  down  a  similar 
proposition.  Mr.  Mason,  of  Lincoln's  Inn,  admitted  that 
in  time  of  war  when  the  king's  courts  are  closed,  the 
common  law  allows  the  exercise  of  martial  law,  when  an 
army  is  in  the  field ;  but  he  asserted  that  a  rebel  taken 
ought  to  be  tried  by  his  peers.  "  We  have  now  "  (1628) 
he  continued,  "  no  army  in  the  field.  We  have  no  enemy 
except  among  ourselves,  and  it  is  no  time  of  war,  there- 
fore the  commission  (to  exercise  martial  law)  is  not  fit 
nor  warranted  by  laAv." 

Mr.  Rolfe,  afterwards  Chief  Justice,  followed.  "  If," 
said  he,  "  the  Chancery  and  Courts  of  Westminster  be 
shut  up,  it  is  time  of  war ;  but  if  the  Courts  be  open,  it  is 
otherwise.  '"'  '"'  '^  ^'  ^  If  an  enemy  come 
into  any  part  where  the  common  law  cannot  be  executed, 
there  martial  law  may  be  executed  ;  but  if  a  subject  be 
taken  in  rebellion,  not  slain  at  the  time  of  the  rebellion, 
he  is  to  be  tried  after  the  common  law." 

The  illegality  of  martial  law,  even  for  the  government 
and  discipline  of  the  military,  is  annually  reiterated  in 
the  preamble  of  the  Mutiny  Act ;  and  every  school-boy  is 
taught  to  lisp  this  as  one  of  the  constitutional  safeguards 
of  personal  liberty  :  "  And  whereas  no  man  can  be  fore- 
judged of  life  or  limb,  or  subjected  in  time  of  peace  to 
any  thing  of  punishment,  within  the  realm,  by  martial 
law,  or  in  any  other  manner  than  by  the  judgment  of  his 
peers,  and  according  to  the  known  and  established  laws 
of  the  realm." 

Military  law  and  martial  law  are  sometimes  con- 
founded. Military  law  is  exercised  by  the  authority  of 
Parliament,  and  the  Mutiny  Act,  annually  passed,  to- 
gether with  the  Articles  of  War,  framed  by  her  majesty, 
and  the  printed  regulations,  from  time  to  time  issued  for 
the  government  of  her  majesty's  troops.  Martial  law 
may,  no  doubt,  be  established  by  an  Act  of  Parliament ; 
but  what  we  are  now  considering  is  the  authority  of  the 
crown  in  that  behalf. 

Martial  law  has  been  established  in  Ireland  by  author- 
ity of  Parliament,  and  it  has  sometimes  been  proclaimed 
without  such  authority.  The  former  is  legal,  as  Parlia- 
ment is  omnipotent;  the  latter  is  illegal.  Lord  Lough- 
borough, in  the  case  of  Grant  vs.  Gould,  2  Henry,  BL,  69, 
draws  this  distinction  very  clearly.  "  Martial  law,"  says 
that  able  judge,  "  such  as  is  described  by  Hale,  and  such 
also  as  is  marked  by  Sir  William  Blackstone,  does  not 
exist  in  England  at  all.  When  martial  law  is  established 
in  any  country,  it  is  of  a  totally  diflferent  nature  from 


98  Appendix. 

that  wliicli  by  inaccuracy  is  called  martial  law,  merely 
because  the  decision  is  a  by  a  court-martial  ;  but  which 
bears  no  affinity  to  that  which  was  formerly  attempted 
to  be  exercised  in  this  country,  which  was  contrary  to 
the  Constitution,  and  has  been  for  a  century  (this  w^as 
said  in  1792)  totally  exploded."  Another  century  has 
nearly  elapsed  and  we  find  the  "  exploded  "  expedients 
renewed  in  a  part  of  the  empire  considered,  perhaps,  too 
remote  to  be  within  the  reach  of  the  public  opinion  of 
the  mother  country. 

Such  then  was  the  state  of  the  law  long  before  the 
oldest  of  the  Australian  colonies  was  established.  These 
colonies  took  the  law  of  England  in  force  at  the  date  of 
their  establishment,  respectively,  "  so  far  as  the  same 
was  suited  to  their  circumstances  and  condition,"  which 
would  include  all  those  guarantees  of  personal  security 
and  freedom  which  have  been  from  time  to  time  wrested 
from  the  Crown  by  the  courage,  and  sometimes  by  the 
blood  of  our  ancestors.  The  martial  law  which  w^e  are 
now  condemning,  and  which  Lord  Loughborough  so 
clearly  distinguishes  from  the  military  law  authorized  by 
Parliament  for  the  government  of  the  army,  is  similar — 
nay  identical — with  that  which  is  exercised  when  our 
armies  are  in  the  field  in  a  foreign  country.  When  our 
armies  are  in  a  foreign  country  flagrante  hello,  the  troops 
are  governed  by  the  royal  prerogative.  In  a  foreign 
country  we  cannot  have  courts.  But  even  in  this  case  the 
Queen's  regulations  are  followed  as  nearly  as  possible. 
In  the  case  of  Bands  vs.  Keppel,  2  Wils.,  314,  the  Court 
said  :  "  By  the  act  of  Parliament,  to  punish  mutiny  and 
desertion,  the  king's  power  to  make  articles  of  w^ar  is 
confined  to  his  own  dominions.  When  his  army  is  out  of 
his  dominions,  he  acts  by  virtue  of  his  prerogative,  and 
without  the  statutes  and  articles  of  war,  and  therefore 
you  cannot  argue  upon  either  of  them,  for  they  are  both 
to  be  laid  out  of  the  case.  Infer  arma  silent  leges.  We 
think,  as  at  present  advised,  that  we  have  no  jurisdiction 
at  all  in  this  case." 

Martial  law  has  sometimes  been  proclaimed  in  Ire- 
land without  the  authority  of  Parliament.  In  America, 
before  the  Declaration  of  Independence,  the  Governors 
were  empowered  so  to  do,  by  a  clause  in  their  com- 
missions, since  omitted.  From  those  two  precedents 
it  may  be  concluded,  that  although  no  power  to  exercise 
martial  law  in  England  exists,  yet  the  Crown  has  such 
power  in  Ireland  and  the  colonies,  and  may  therefore 
still  delegate  it  to  Lords-lieutenant  and  colonial  Gov- 
ernors.    Let  us  examine  these  two  opponent  precedents. 


KiKjliali  Lair  jLajjazim-  nn  Marital  Lan:  m  AiisiruJia.      1>U 

A.S  to  the  case  of  Irelaiul,  wbat  reader  of  history  does 
not  recall  to  mind  the  noble  conduct  of  Lord  Kilwarden, 
in  the  case  of  Theobald  Wolf  Tone  ?  Tone  had  been 
taken,  in  open  rebellion,  on  board  a  French  ship  of  war. 
He  had  been  tried  by  a  court  martial,  under  a  proclam- 
ation of  martial  law,  had  been  condemned  to  death, 
and  was  actually  in  the  hands  of  the  Provost  Marshal, 
as  the  military  hangman  is  called.  Curran,  in  breathless 
haste,  rushed  into  the  Court  of  King's  Bench,  then 
sitting,  and,  in  Tone's  name,  demanded  of  Lord  Kil- 
warden a  writ  of  habeas  corpus.  It  was  at  once  granted. 
"But,  my  lord,"  urged  Curran,  "while  the  writ  is  being 
prepared  my  client  dies;"  whereupon  the  Sheriff  was 
ordered  to  repair  to  the  place  of  execution,  and  command 
the  Provost  Marshal  to  produce  his  prisoner. 

The  functionary  pleaded  the  orders  of  his  commanding- 
officer,  and  refused  to  obey  the  mandate  of  the  Court. 
Upon  this  being  reported  to  Lord  Kilwarden,  the 
commanding  officer  and  the  Provost  Marshal,  with  his 
prisoner,  were  ordered  to  be  arrested  and  brought  into 
Court.  Tone,  thus  being  saved  from  the  rope  of  the 
military  hangman,  was  committed  to  the  custody  of 
the  civil  power  for  trial,  for  there  was  plenty  of  evidence 
against  him  to  justify  his  detention  ;  and  he  afterwards 
anticipated  the  inevitable  result  of  the  trial  for  high 
treason,  by  committing  suicide  in  jail. 

Another  case  in  which  the  dignity  and  authority  of 
the  King's  Courts  was  nobly  upheld  against  military 
usurpation,  though  not  a  case  of  martial  law,  but  rather 
of  the  abuse  of  military  law,  deserves  a  place  here. 
In  the  year  1746,  one  Lieutenant  Frye,  of  the  Boyal 
Marines,  had  been  illegally  punished  under  the  sentence 
of  a  court  martial  lawfully  held,  the  sentence,  however, 
being  in  excess  of  the  power  of  the  Court.  He  brought 
an  action  against  Admiral  Ogle,  and  recovered  XI, 000 
d'umages.  In  the  course  of  the  trial.  Lord  Chief  Justice 
Willes  intimated  an  opinion  that  every  member  of  the 
Court  was  liable  to  an  action  for  the  illegal  sentence. 
Upon  this.  Lieutenant  Frye  issued  writs  against  Admiral 
Mayne  and  Captain  Benton,  two  of  the  members  of  the 
Court,  and  they  were  served  with  the  w^rits  as  they  were 
returning  from  another  naval  court  martial  upon  Admiral 
Lestvey.  This  was  resented,  "  as  an  insult,"  by  the 
members  of  the  last  named  Court,  and  they  passed 
some  resolutions  highly  derogatory  to  the  Chief  Justice. 
These  they  forwarded  to  the  Lords  of  the  Admiralty, 
by  whom  they  were  reported  to  the  King,  George  11. , 
who.  signified  to  their  lordships,  through  the  Duke   of 


1 00  Appendix. 

Newcastle,  "  his  Majesty's  great  displeasure  at  the  insult 
offered  to  the  court  martial,  by  which  the  military  disci- 
plioe  of  the  navy  is  so  much  affected." 

But  the  Lord  Chief  Justice  was  not  a  man  to  be  over- 
awed in  doing  his  duty,  even  by  the  frowns  of  royalty; 
and  as  soon  as  the  resolutions  were  communicated  to 
him,  he  ordered  all  the  members  of  the  Court  into 
custody  for  their  contempt,  and  was  proceeding  to  up- 
hold the  dignity  of  the  Court  in  a  very  decided  manner, 
when  the  wdiole  affair  was  terminated  in  November,  1746, 
by  the  members  of  the  court-martial  signing  and  sending 
to  the  Chief  Justice  a  very  ample  written  apology  and 
submission  for  their  conduct.  The  paper  was  read  aloud 
in  the  Court  of  Common  Pleas,  and  was  ordered  to  be 
registered  among  the  records  of  the  Court  where  it  is 
still  to  be  found,  "  as  a  memorial,"  said  his  lordship, 
"  to  present  and  future  ages,  that  whoever  set  themselves 
up  in  opposition  to  the  laws,  and  think  themselves  above 
the  law,  will,  in  the  end,  find  themselves  mistaken."  The 
proceedings  and  tlie  apology  were  published  in  the 
London  Gazette  of  the  15th  November,  1746,  and  will  also 
be  found  in  the  Gentleman  s  Magoziae  for  that  year. 

As  to  the  case  of  the  old  colonies  in  America,  there 
can  be  no  doubt  that  the  old  commissions  did  contain  a 
clause  empowering  the  governors  to  exercise  martial 
Inw,  but  it  was  expressly  limited  to  "  times  when  l>y  law 
it  may  be  exercised."  But  it  should  be  remembered, 
that  before  the  declaration  of  independence,  wars  had 
frequently  been  carried  on  between  the  "provincials" 
and  the  French  of  New^  France,  without  much  aid  from 
the  parent  state ;  it  was  therefore  considered  necessary 
to  give  to  the  provincial  governors  ample  powers  to  levy 
troops,  to  command  them  when  levied,  and  to  govern 
them  at  all  times.  Accordingly  the  governors  were 
clothed  with  full  powers  and  authority  to  "  levy,  arm, 
muster,  command,  and   employ    all  persons   whatsoever 

residing  in  our  province  of ,  and  other  territories 

under  your  government,  and,  as  occasion  shall  serve,  to 
march  them  from  one  place  to  another,  and  to  embark 
them  for  the  resisting  of  all  enemies,  pirates,  and  rebels, 
both  at  sea  and  land,  and  to  transport  such  forces  to  any 
of  our  plantations  in  America,  if  occasion  shall  require, 
for  the  defence  of  the  same  against  all  enemies  -^^  -^  -^^  -^ 
and  to  execute  martial  law  in  times  of  invasion  and  other 
times  ^v]^en  by  laiv  it  may  be  exercised.'' 

It  cannot  fail  to  strike  the  constitutional  reader,  that 
great  care  has  been  taken  to  confine  this  power  within 
legal  boundaries.     Can  it  be  supposed  that  the  clause 


EngliHli  Law  Mogaziiw  on  Martial  Lav  in  Australia.    101 

was  intended  to  convey,  what  it  could  not  convey,  powers 
wliicli  the  king  himself  has  not  possessed  since  the  Peti- 
tion of  Right  ? 

It  was  meant  to  authorize  the  governors  to  exercise 
one  of  the  royal  functions,  which,  without  author- 
ity under  the  Great  Seal,  he  could  not  exercise, 
namely,  to  raise  troops,  recruit  them,  move  them 
from  place  to  place,  even  out  of  the  territorial  juris- 
diction, and  govern  them  according  to  military  law — that 
is,  by  the  articles  of  war  when  at  home,  and  by  the  pre- 
rogative when  in  a  foreign  colony,  and  when  in  the  field . 
flagrante  hello.  The  commission  to  General  Murray,  after 
the  conquest  of  Canada,  contained  a  similar  clause,  but 
it  was  dropped  out  soon  after  the  Ameiican  troubles 
commenced  ?  Why  ?  Not  because  it  was  illegal,  as  above 
limited ;  not  because  it  had  been  illegaly  executed ; 
not  because  the  people  of  America  had  included  it 
among  their  grievances ;  not  because  it  had  ever  been 
used  to  oppress  the  people  ;  not,  indeed,  out  of  any 
tender  consideration  for  popular  liberty  ;  but  simply  be- 
cause the  jealous  policy  of  the  Government  of  that  day 
deemed  it  wiser  to  employ  regular  troops,  and  even  for- 
eign mercenaries,  than  to  train  angry  colonists  to  the 
use  of  arms,  and  teach  them  the  art  of  war.  It  was  un- 
der the  authority  of  this  clause  that  Washington  was 
converted  from  a  district  surveyor  into  a  provincial  sol- 
dier. It  was  in  one  of  the  border  wars  that  lie  gained 
his  first  renown. 

The  whole  language  of  the  clause,  in  the  old  commis- 
sions— which  will  be  found,  printed  at  length,  in  Baren 
Mazere's  collection,  entitled  "Quebec  Commissions." 
quarto,  1772 — as  well  as  the  mode  in  which  it  was  inter- 
preted and  exercised  by  the  provincial  governors,  shows 
that  it  was  not  intended  to  operate,  and  did  not,  in  fact, 
operate  beyond  the  legal  powers  of  the  King.  I3ut  if  it 
was  so  intended,  either  willfully  or  by  misconception, 
there  is  no  trace  of  it  in  any  governor's  commission  for 
nearly  a  century.  If  the  King  of  that  day  usurped  a 
power  in  the  colonies,  the  Queen  of  this  day  certainly 
does  not. 

As  the  power  of  proclaiming  and  exercising  martial 
law  is  not  expressly  given  to  the  governors  of  the  Aus- 
tralian and  other  colonies,  have  such  governors  any 
such  authority,  irrespective  of  their  commissions? 

The  extent  of  the  powers  of  the  Governor  of  a  colony 
has  been  determined  by  a  great  number  of  judicial  decis-^ 
ions.     He  is  not  the  general  representative  of  the  Queen. 
He  does  not  exercise  all  the  prerogatives  of  the  Crowm 


102  Appevdir. 

He  can  only  exercise  such  powers  as  are  delegated  to 
him  by  his  commission,  or  in  some  instances  by  the  char- 
ter of  the  colony,  or  by  some  equally  binding  instrument, 
under  the  Great  Seal  of  England,  by  which  alone  the 
Queen  can  confer  power  upon  her  colonial  governors. 
Beyond  the  powers  thus  specifically  conferred  upon  him, 
he  cannot  legally  travel ;  and  if  he  exceed  them,  he  ren- 
ders himself  liable  to  an  action  at  the  suit  of  the  party 
injured,  and  even  to  an  indictment,  if  the  infraction  of  his 
powers  amount  to  a  criminal  offence.  We  proceed  to 
support  these  propositions  by  judicial  decisions. 

In  the  case  of  Fahrigas  vs.  Alosfyn/lO  State  Trials, 
Governor  Mostyn  had  taken  upon  himself  to  arrest  and 
banish  the  plaintiff  from  Minorca  to  the  Spanish  Main, 
under  an  imputation  of  alleged  treasom3ble  practices. 
The  plaintiff  followed  the  Governor  to  England,  brought 
an  action  against  him,  and  recovered  £4,000  damages. 
The  Court  refused  to  set  aside  this  verdict,  and  Lord 
Chief  Justice  de  Grey,  in  the  course  of  his  judgment,  ob- 
served that  "  the  Governor  is  the  King's  servant ;  his 
commission  is  from  him,  and  he  is  to  exercise  the  powers 
he  is  invested  with  by  his  commission,  which  is  to  exe- 
cute the  law^s  of  Minorca." 

The  next  case  to  which  we  shall  refer,  in  which  this 
limitation  of  a  Governor's  power  is  judicially  asserted,  is 
Cameron  vs.  Kyte,  BKnapp,  P.  C.  Cases,  332.  The  prin- 
ciple had  been  laid  down  by  Lord  Mansfield,  in  CanrpleU 
vs.  Hall,  Cowp.  210,  that  the  King  can  make  laws  for  a 
conquered  colony.  The  Governor  of  Demarara  had  as- 
sumed that,  as  the  King's  representative,  he  could  do  so 
likewise ;  and  he  exercised  that  power  by  an  ordinance 
increasing  the  commission  of  the  vendue  master,  or  official 
auctioner  of  the  colony.  The  plaintiff  brought  an  action 
for  the  excess  of  commissions  levied  by  the  vendue  mas- 
ter, and  the  case  came  before  the  Judicial  Committee  of 
the  Privy  Council.  The  Committee,  in  deciding  that  the 
Governor  had  no  such  power,  said,  "  The  Governor  has 
not,  by  virtue  of  his  appointment,  the  sovereign  authority 
delegated  to  him  ;  and  an  act  done  by  him  on  his  own 
authority,  unauthorized  by  his  commission,  or  expressly 
or  impliedly  by  his  instructions,  is  not  equivalent  to  an 
act  done  by  the  Crown  itself,  and  is  consequently^  not 
valid."  The  language  of  Lord  Brougham,  in  delivering 
judgment  in  Hill  vs.  Bic/tje,  3  Moore  P.  C,  476,  is  to  the 
same  effect — "  If  it  be  said  that  the  Governor  of  a  colony 
.  is  g/iasi  severeign,  the  answer  is,  that  he  does  not  even 
represent  the  sovereign  generally,  having  only  the  func- 
tions delegated  to  him  by  his  commission,  and  being  only 


English  Lmr  Magazine  on  3Tartial  Law  in  Australia.    103 

the  officer  to  execute  the  specific  powers  with  which  the 
ommission  clothes  him." 

Numerous  cases  might  be  cited  in  w^hich  colonial 
governors  have  been  sued  with  success,  in  the  Courts 
at  Westminster,  for  acts  done  in  excess  of  the  powers 
conferred  upon  them  by  the  powers  of  their  commissions, 
and  under  erroneous  estimate  of  their  own  authority. 
In  Wall  V.  Macriamara  (cited  1  T.  R.,  536),  the  plaintiff 
recovered  damages  against  the  defendant,  who  had 
been  Governor  of  Senegambia,  for  false  imprisonment, 
attended  with  cruelty,  the  act  being  in  excess  of  the 
governor's  powers,  given  to  him  by  his  commission. 
The  plaintiff,  Captain  Wall,  was  afterwards  appointed 
Governor  of  Goree,  and,  not  warned  by  his  own  cause 
of  complaint  against  Governor  Macnamara,  he  punished 
a  soldier,  under  color  of  military  law,  but  without  any 
regular  trial,  so  severely  that  the  man  died  under 
torture.  Governor  Wall,  on  his  return  to  England, 
was  brought  to  trial,  at  the  Old  Bailey,  for  murder, 
and  w^as  convicted  and  hanged,  at  Tyburn,  in  1802. 
('28  St.  Tr.,  51.) 

This  branch  of  the  subject  may  be  appropriately 
concluded,  by  an  extract  from  a  work  of  a  very  able 
colonial  lawyer,  written  before  the  two  last  decisions 
had  placed  the  subject  beyond  all  doubt : 

"  I  cannot  close  this  paper,"  sa^^s  the  writer  referred 
to,  "  without  making  some  observations  on  an  expression 
which  provincial  baseness  has  brought  into  use,  and 
which  is  calculated  to  convey  very  erroneous  notions 
of  the  powers  of  governors,  to  themselves  and  others. 
We  every  day  hear  the  governor  called  the  "  king's 
representative."  Nothing  is  more  inaccurate  than  the 
expression,  in  the  sense  in  which  it  is  used.  Consti- 
tutionally, the  king  is  the  fountain  of  all  office,  honor 
and  power ;  and  such  officer  of  the  government,  de- 
riving his  authority  from  the  king,  represents  the 
king  in  the  exercise  of  his  legal  powers.  This  is  true, 
as  well  of  the  lowest  as  of  the  highest  officers.  It  is 
as  true  of  a  constable  as  of  the  Lord  Chancellor.  In  no 
other  sense  can  it  be  rightly  applied  to  the  governor  of 
a  colony.  None  of  the  peculiar  attributes  of  sovereignty, 
under  the  constitutional  law^  of  England,  are  applicable 
to  that  officer. 

The  king  can  do  no  wrong.  Is  that  true  of  a  provin- 
cial governor?  The  king's  powers  are  original,  inherent, 
perpetual.  Those  of  a  governor  are  derivative,  tem- 
porary, and  dependent  on  the  will  of  him  who  conferred 
them.     Constitutionally,  the  king  is  responsible  to  God 


1 04  Ajypendix. 

alone  for  his  acts.  The  governor  is  answerable  to  his 
royal  master.  The  king  is  answerable  to  no  human  tri- 
bunal for  the  discretion  which  he  exercises  in  displacing 
public  officers.  The  governor  is  answerable  to  the  king's 
Courts  at  Westminster  for  the  suspension  or  removal  of 
any  subject  of  the  king  holding  an  office  of  emolument  in 
the  colony.  That  an  expit^fesion  such  as  this  should  have 
obtained  currency  is  of  itself  pregnant  evidence  of  the 
servility  of  that  class  of  the  colonial  society  where  it  has 
long  been  and  continues  to  be  in  daily  use." 

{On  tlw-  functions  and  ditties  of  the  governor  (f  a  British 
province,  by  A.  Stuart  advocate.     Montreal,  1832.) 

The  principles  which  we  have  endeavored,  and  we  trust 
successfully,  to  establish,  may  be  thus  recapitulated  : 

1.  The  Queen  of  England  has  no  power  or  authority  to 
exercise  martial  law,  either  in  England  or  the  colonies. 

2.  Within  the  limits  of  the  Queen's  dominie  rs,  the 
army,  and  all  persons  belonging  thereto  and  under  mil- 
itary authority,  are  to  be  governed  by  the  Kutiny  Acts 
and  the  Articles  of  War. 

3.  This  military  law  is  distinct  from,  and  therefore  not 
to  be  confounded  with,  what  is  called  martial  law,  Avhich 
is  illegal. 

4.  When  the  Queen's  troops  are  in  the  field,  in  a  for- 
eign country,  and flag)ante  hello,  they  are  to  be  governed 
by  the  royal  prerogative. 

5.  These  rules  do  not  extend  to  civil  perscms  not 
amenable  to  military  authority. 

6.  The  Queen  cannot  impart  to  a  Colonial  Governor 
powers  which  she  does  not  possess ;  and  she  has  not 
done  so. 

7.  The  Governor  of  a  colony  is  not  the  general  repre- 
sentative of  the  Queen,  and  can  only  exercise  the  poweis 
lawfully  delegated  to  him  by  the  Queen's  commission. 

8.  Hence,  the  exercise  of  martial  law  by  the  Governor 
of  a  colony  is  illegal,  and  would  even  be  so  if  such  power 
were  included  in  his  commission.  Not  being  so  inchuled, 
its  exercise  amounts  to  a  double  usurpation. 


YC  03052 


UNIVERSITY  OF  CAUFORNIA  UBRARY 


m 


